NHRC - Gnlu Moot Court Competition, 2019: Before Honourable Supreme Court of Omberlands

NHRC-GNLU NATIONAL MOOT COURT COMPETITION, 2019
TEAM CODE: 111
NHRC - GNLU MOOT COURT COMPETITION, 2019
BEFORE
HONOURABLE SUPREME COURT OF OMBERLANDS
(Public Interest Litigation filed under Art. 32 of Constitution of Omberlands)
Society for the Welfare of Indigenous People of PETITIONER

Aurom
VERSUS
Republic of Omberlands RESPONDENT 1
State of Aurom RESPONDENT 2
MEMORANDUM ON BEHALF OF RESPONDENT
MEMORANDUM ON BEHALF OF RESPONDENT Page 1

TABLE OF CONTENTS
LIST OF ABBREVIATIONS ......................................................................................................... 4

INDEX OF AUTHORITIES........................................................................................................... 5
STATEMENT OF JURISDICTION............................................................................................... 8
STATEMENTS OF FACTS ......................................................................................................... 10
STATEMENT OF ISSUES .......................................................................................................... 12
SUMMARY OF ARGUEMENTS ............................................................................................... 13
ARGUMENTS ADVANCED ...................................................................................................... 15
ISSUE 1: WHETHER THE PIL BROUGHT BEFORE THE SUPREME COURT IS
MAINTAINABLE....................................................................................................................... 15
A. THAT THERE HAS BEEN NO VIOLATION OF THE FUNDAMENTAL RIGHTS. ...... 15
B. THAT THERE WAS ALTERNATE STATUTORY REMEDY AVAILABLE .................. 16
ISSUE 2: WHETHER CHALLENGING SEC.6A OF THE OMBERLANDS
CITIZENSHIP ACT AS BEING ULTRA VIRES OF THE CONTITUTION OF
OMBERLANDS .......................................................................................................................... 16
A. THE PITH AND SUBSTANCE OF THE ACT IS ‘CITIZENSHIP’ ................................... 17
B. THE SUBJECT MATTER OF THE ACT FALLS UNDER THE UNION LIST ................ 18
ISSUE 3: WHETHER THE ACTION OF THE REPUBLIC OF OMBERLANDS IN
AMENDING THE OMBERLANDS CITIZENSHIP ACT ON THE BASIS OF AN
AGREEMENT CONSTITUTIONAL ...................................................................................... 20
A. NO FUNDAMENTAL RIGHTS HAVE BEEN VIOLATED BY THE REPUBLIC OF
OMBERLANDS. .......................................................................................................................... 20
I. AUTHORITIES HAVE NOT FAILED TO APPLY THE PRINCIPLE OF EQUALITY U/A 14 ........................ 20
a) Be found Intelligible differentia: ........................................................................................... 20
b) Legitimate Aim: ..................................................................................................................... 21
II. NO VIOLATION OF ART. 21 ....................................................................................................... 21
B. PROTECTION FROM REFOULEMENT. ........................................................................... 23
ISSUE 4: WHETHER SEC.3 OF OMBERLANDS CITIZENSHIIP ACT IS VALID ?..... 25
A. UNION AND STATE BOUND BY THE CONTRACTS .................................................... 25

I. LAWS TO BE MADE IN ACCORDANCE WITH ART. 13 ...................................................................... 26
II. NO VIOLATION OF ART. 14........................................................................................................ 26

a) The authorities have applied principle of reasonableness and the impugned act is well
within the contours of the procedure established by law: ............................................................ 27
b) The authorities have applied principle of reasonableness to the object or purpose of the
legislation: .................................................................................................................................... 27
III. NO VIOLATION OF ART. 21 .................................................................................................... 28
a) Right to livelihood ................................................................................................................. 28
b) Right to education .................................................................................................................. 29
c) Right to shelter....................................................................................................................... 29
IV. NO VIOLATION OF ART. 15 OF THE CONSTITUTION................................................................. 29
B. STATE BOUND BY INTERNATIONAL CONVENTIONS .............................................. 30
I. UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948): ............................................................. 30
II. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966 ......................................... 31
III. CONVENTION ON THE RIGHTS OF THE CHILD, 1989 ............................................................... 31
IV. CONVENTIONS ON STATELESSNESS, 1954 .............................................................................. 31
ISSUE 5: WHETHER REPUBLIC OF OMBERLANDS AND STATE OF AUROM ARE
LIABLE TO PAY COMPENSATION TO THE PEOPLE OF AUROM FOR
COMMITTING A BREACH OF THE AGREEMENT. ........................................................ 32
A. CHALLENGING THE AUTHENTICITY OF THE REPORTS .......................................... 32
B.SITUATIONS HEREIN ARE NOT IN CONTROL OF THE PRESENT GOVERNMENT .. 32
PRAYER ....................................................................................................................................... 34

LIST OF ABBREVIATIONS
ABBREVIATIONS EXPANSION
SCC Supreme Court Cases
SC Supreme Court
Art. Art.
UDHR Universal Declaration of Human Rights
A.I.R All India Reports
ICCPR International Covenant on Civil and Political

Rights
UNHRC United Nation Human Rights Commission
PIL Public Interest Litigation
Raj. Rajasthan
SCJ Supreme Court Journals
Del. Delhi
Sec. Section

INDEX OF AUTHORITIES
TABLE OF CASES
▪ INDIAN CASES
S. NO. NAME OF CASES PG. NO.
1 Abodha Kumar Mohapatra and Ors. v. State of Orissa and Ors, AIR 1969 Ori 80. 29
2 Air India v. NargeshMeerza, AIR 1981 SC 1829. 20
3 Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722, 741. 20
4 Ameeroonisa v. Mahboob, AIR 1953 SC 91. 20
5 Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC. 34. 26
6 Atiabari Tea Co. v. State of Asam, AIR 1961 SC 232. 19
7 Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726. 16
8 Board of Trustees of the Port of Bombay v. Dilipkumar R Nandkarni, (1983) 1 28
SCC. 124.
9 Cherchi De Raedt v. Union of India, AIR 1991 SC 1886. 22
10 Commissioner of Income Tax v. Chhabil Dass Agrawal, (2014) 1 SCC. 603. 16
11 Committee for C.R. of C.A.P. & Ors. v. State of Arunachal Pradesh & Ors Writ 24
Petition 510 OF 2007, Civil Original Jurisdiction.
12 Confederation of Ex- servicemen Association v. UOI, (2006) 8 SCC. 399. 28
13 D.K. Basu v. State of West Bengal, AIR 1997 SC 610. 28
14 Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101. 22
15 Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872. 22
16 Fertilizer Corpn Kamgar Union v. Union of India, (1981) 1 SCC. 568, 584. 27
17 Hans Muller v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367. 18
18 Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors., Writ 30
Petition (Civil) no. 373 of 2006.
19 K. Karunakaran v. State of Kerala and Anr. MANU/SC/0209/2000. 27
20 K. Thimmappa v. Chairman Central Board of Directors SBI, AIR 2001 SC 467. 20
21 Kailash Chand Sharma and Ors. v. State of Rajasthan and Ors., Civil Writ 30
Petition No. 833/2010.
22 Kannan D.H.P. Co. v. State of Kerala, AIR 1972 SC 2301. 19
23 Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159. 16
24 Karnataka Bank Ltd. v. State of Andhra Pradesh, (2008) 2 SCC. 254. 18
25 Kartar Singh v. State of Punjab, (1994) 3 SCC. 569. 19
26 Kesvananda Bharti v. State of Kerala, (1973) 4 SCC. 225. 26
27 Krishna Bhimrao Deshpande v. Land tribunal, AIR 1993 SC 883. 19
28 Krishna swami v. Union of India (1992) 4 SCC. 605. 15
29 L.I.C v. Consumer Education and Research Centre, AIR 1995 SC 1811. 22
30 l.R. Coelho v. State of T.N., AIR 2007, SC 891. 22
31 Laxmi Raj Shetty v. State of Tamil Nadu, AIR 1988 SC 1274, 1988 SCR (3) 706. 32
32 Louis De Raedt v. Union of India (1991) 3 SCC. 544. 23
33 M Nagraj v. UOI; (2006) 8 SCC. 212. 26
34 M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160. 22

35 M. Nagaraj v. Union of India, (2006) 8 SCC 212 : AIR 2007 SC 71. 21

36 M.C. Mehta v. Union of India, 1987 SCR (1) 819, AIR 1987 SC 965. 15
37 Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, AIR 1993 SC 935. 22
38 Maneka Gandhi v. Union of India, AIR 1978 SC 597. 22
39 Mohini Jain v. State of Karnataka, AIR 1992 SC 1858. 29
40 National Human Rights Commission v. State of Arunachal Pradesh AIR 1996 SC 24
1235.
41 Natural Resources Allocations, Re Special Reference Number 1 of 2012, (2012) 27
10 SCC 1 (77).
42 Navinchandra Mafatlal v. Commr. Of Income-tax, Bombay, AIR 1955 SC 58. 18
43 Netai Bag v. State of West Bengal, AIR 2000 SC 3313. 22
44 NHRC v. State of Arunachal Pradesh, 1996, ISCC 295. 21
45 Nivedita Sharma v. Cellular Operators Association of India, (2011) 14 SCC. 337. 16
46 Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors., 1985 SCC. (3) 28
545.
47 Om Kumar v. Union of India, AIR 2000 SC 3689. 22
48 P. Rathinam v. Union of India, AIR 1994 SC 1844 : (1994) 3 SCC. 394. 23
49 P.N. Krishna Lal v. Govt. of Kerala, (1995) Supp (2) SCC 187. 19
50 ParamanandKatara v. Union of India, AIR 1989 SC 2039. 23
51 People’s Union for Civil Liberties v. Union Of India (1997) 1 SCC. 301. 23
52 PG Gupta v. State of Gujrat, (1995) Supp (2) SCC. 182. 29
53 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. 16
54 Premchand Jain v. R.K. Chhabra, AIR 1984 SC 981 : (1984) 2 SCC. 302. 17
55 Quamarul Islam v. S.K. Kanta And Ors, 1994 (1) SCR 210. 32
56 R.C.Cooper v. Union of India, AIR 1970 SC 564. 20
57 R.K.Garg v. Union of India, AIR 1981 SC 2138. 20
58 Rajesh Kumar And Anr. v. State Of U.P. And Ors., 1963CriLJ329. 28
59 Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum & Ors, 1992 ACJ 33
792, (1991) 1 GLR 650.
60 Rakesh Vij v. Raminder Pal Singh Sethi,(2005) 8 SCC. 504. 26
61 Ramjilal v. Income Tax Officer, AIR 1951 SC 97. 15
62 Ratan Lal Soni v. The State of Rajasthan And Ors.,Writ petition (Civil) No. 32
143/2018.
63 Re-Special Courts Bill, AIR 1979 SC 478. 20
64 S.P. Gupta v. President of India and others, AIR 1982 SC 149. 15
65 S.P. Shenbagamoorthy v. Dr. Chenna Reddy, The Governor, (1994) 2 MLJ 23. 32
66 S.S. Ahluwalia v. Union of India, AIR 2001 SC 1309. 28
67 Satpal & o. v. Lt. Governor of Delhi, AIR 1979 SC 1950. 19
68 Secretary, Govt. of India v. Alka Shubhash Gadia, 1990 SCR, Supl. (3) 583. 16
69 Sita Ram v. State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 251. 19
70 Southern Pharmaceutical ltd. v. State of Bihar, AIR 1983 SC 1019. 19
71 State of Arunachal Pradesh v. Khudiram Chakma AIR 1994 SC 1461. 24
72 State of Bombay v. Narottamdas, AIR 1951 SC 69, 96. 19
73 State of Karnataka v Narasimhamurthy,(1995) 5 SCC. 524. 29
74 The Managing Director, Kerala v. Deepti Singh, Civil Appeal No. 6038/2015. 32
75 Indra Sawhney v. UOI 1992 Supp (3) SCC 212. 26
76 Union of India v. H.S. Dhillon, AIR 1972 SC 1061. 18

77 Union of India v. Paul Manickam, AIR 2003 SC 4622. 16

78 Union of India v. Shah Goverdhan L. Kabra Teachers College, (2002) 7 SCALE 19
435.
79 University of Delhi v. Ram Nath, MANU/SC/0143/1963 : (1963) IILLJ 335 SC 29
80 Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178: (1993) 1 SCC. 22, 28
645.
81 Welfare Assn. ARP v. Ranjit P. Gohil, (2003) 9 SCC. 358 : AIR 2003 SC 1266. 18
▪ FOREIGN CASES
S. NO. NAME OF CASES PG. NO.

1 Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781. 33
2 Cruz Varas v. Sweden, Application No. 15567/89, 20 March 1991. 25
3 Lindsley v. Natural Carbonic Gas Co., (1910) 220 US 61. 20
4 Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1. 32
5 Munn v. Illinois, (1877) 94 U.S. 113. 28
6 Soering v. United Kingdom, Application No. 14038/88, 7 July. 25
TABLE OF BOOKS
S. No. NAME OF THE BOOK

1 M P JAIN, CONSTITUTIONAL LAW OF INDIA, 8th ed; 2018
2 DD BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA, 23rd ed;
2018
3 BP BANERJEE, WRIT REMEDIES, 7th ed; 2015
4 JATINDRA KUMAR DAS, HUMAN RIGHTS LAW AND PRACTICE, 2016
6 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4th ed; 2017
TABLE OF STATUTES
S. No. NAME OF THE STATUTE
1 The Constitution of India, 1950 [No. 101 of 2016]

2 The Citizenship Act, 1955 [No. 57 of 1955]
3 The Passport Act, 1967 [No. 15 of 1967]
4 The Foreigners Act, 1946 [No. 16 of 2004]

TABLE OF INTERNATIONAL CONVENTIONS
S. No. NAME OF THE CONVENTION
1 United Nations Conference on Environment and development, 1992

2 United Nations Declaration on the rights of Indigenous People, 2007
3 Universal Declaration of Human Rights, 1948
4 International Covenant on Economic, Social and Cultural Rights, 1976
5 Convention on the Reduction of Statelessness, 1975
6 International Covenant on Civil and Political Rights, 1976
7 Convention on the Rights of the Child, 1990
8 United Nations Human Rights Council, 2006
9 The Indigenous and Tribal population convention, 1957
LEGAL DATABASES
S. NO. PARTICULARS
1 HEINONLINE
2 LEXIS NEXIS
3 SCC ONLINE
4 MANUPATRA
5 WEST LAW

STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of Omberlands does not have the jurisdiction in this matter under
Art. 321 of the Constitution of Omberlands.
1
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.

STATEMENTS OF FACTS
BACKGROUND
The Republic of Omberlands is the country has a quasi-federal structure with 25 states and 5
centrally administered units. The state of Aurom is located in the south-west corner of
Omberlands. Aurom shares its western border with the neighbouring country, People’s Republic
of Mumbaria, most of which is the natural riverine border formed by the Nihel.
INDEPENDENCE OF MUMBARIA
Prior to declaring its independence on 25th January 1991, the Mumbaria was a colony of the
United Provinces of Balian for a period of almost 15 years. The Balian armed forces retaliated
with heavy use of force,compelling hundreds of thousands of Mumbarians to flee across the
border into Aurom in Omberlands. The Prime Minister of Omberlands supported and provided
food and shelter to the refugees who are entering its borders due to persecution by the Balian
forces.
Some of the refugees were taken to the temporary camps set up by the Government of
Omberlands. In November 1990, a violent large scale movement erupted against the Balian
administration, led by a Mumbarian rebel group, popularly known as United Against Oppression.
Eventually, on 25th January 1991, the Balian armed forces were defeated and Mumbaria
declared its independence.
AFTER THE INDEPENDENCE

Mumbaria became an independent nation- putting an end to the persecution of Mumbarians, the
migration in Aurom continued. The new government in the Republic of Mumbaria assured the
Government of Omberlands that they are taking necessary steps to stop their citizens from
entering Omberlands.
In December 1998, several local organizations in Aurom, led by the Auro Youth United, started
protesting against the governments of Omberlands and Aurom. The protestors claimed that the
continued illegal immigration in Aurom has not only affected the culture of the Auro people.

STEPS TAKEN BY OMBERLANDS TO RESOLVE THE SITUATION

In order to resolve the situation, on 15th May 1999, the Prime Minister of Omberlands entered
into a Tripartite Agreement with the Government of Aurom and Auro Youth United, which inter
alia contained some of the important provisions. And also accordingly Omberlands Citizenship
Act was amended on May 23rd, 1999 to include Sec.6-A.
PRESENT SITUATION
In April 2019, an unregistered association called the Society for the Welfare of Indigenous
People of Aurom (SWIPA) filed a writ petition before the Supreme Court of Omberlands under
Art. 32 of the Constitution of Omberlands. The said petition is listed for hearing before the
Constitution Bench on 29th June 2019.

STATEMENT OF ISSUE
~ ISSUE 1 ~
Whether the PIL brought before the Supreme Court is maintainable?
~ ISSUE 2 ~
Whether Sec.6A of the Omberlands Citizenship Act is ultra vires of Constitution of Omberlands?
~ ISSUE 3 ~
Whether the action of the Republic of Omberlands in amending the Omberlands Citizenship Act
on the basis of an agreement constitutional?
~ ISSUE 4 ~
Whether Sec.3 of Omberlands Citizenship Act is valid?
~ ISSUE 5 ~
Whether the Republic of Omberlands and State of Aurom are liable to provide compensation to
Auro people?

SUMMARY OF ARGUEMENTS
ISSUE 1: WHETHER THE PIL BROUGHT BEFORE THE SUPREME COURT IS

MAINTAINABLE?
It is humbly submitted before the Hon’ble Supreme Court that the PIL is not maintainable under
Art. 32 of the Indian Constitution. First, it is not maintainable because there has been no
violation of the Fundamental Rights. Second, the petitioners could have entertained their petition
in the High Court or they could have sought any alternate remedy, therefore the petitioners
cannot seek remedy under Art. 32 of the Indian Constitution
ISSUE 2: WHETHER SEC.6 A OF OMBERLANDS CITIZENSHIP ACT IS ULTRA

VIRES OF CONSTITUTUION OF OMBERLANDS?
It is humbly submitted that S. 6A of the Omberlands Citizenship Act is within the legislative
competence of the Union as the subject matter of the Act falls under the Union List and thus is
not ultra vires to the Constitution of Omberlands. First, the pith and substance of the act is
‘citizenship’. Second, the subject matter of the act falls under the Union list.

AGREEMENT CONSTITUTIONAL?
It is humbly submitted before the Hon’ble Court that the Citizenship Act is constitutionally valid.
First, the amendment made to the Citizenship Act does not violate any fundamental rights of the
citizens of Omberlands. Second, The Republic of Omberlands was bound by the Protection from
Refoulment.
ISSUE 4: WHETHER SEC.3 OF OMBERLANDS CITIZENSHIP ACT IS VALID?
The respondent humbly submitted that the Petitioner has wrongly challenged Sec.3 of
Omberlands Citizenship Act. This argument is fourfold. First, challenging on the basis of Art. 13
Second, challenging on the basis of Fundamental Rights. Third, challenging on the basis of Art.
15. Fourth, challenging on the basis of International Conventions.

ISSUE 5: WHETHER THE REPUBLIC OF OMBERLANDS AND STATE OF AUROM

ARE LIABLE TO PROVIDE COMPENSATION TO AURO PEOPLE?
The respondents contend that they are not liable to pay compensation to the people of Aurom and
hence, contend that the petitioner has wrongfully challenged the petition. The respondent
contends before the Hon’ble Court that it has not committed any breach of the agreement. This
argument is into 2 limbs. First, challenging the authenticity of reports. Second, negligence
committed by previous government.

ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE PIL BROUGHT BEFORE THE SUPREME COURT IS NOT
MAINTAINABLE.
➢ It is humbly submitted before the Hon’ble Supreme Court that the public interest litigation is
not maintainable under Art. 32 of the Indian Constitution. First, it is not maintainable
because there has been no violation of the Fundamental Rights. Second, the petitioners could
have entertained their petition in the High Court or they could have sought any alternate
remedy, there the petitioners cannot seek remedy under Art. 32 of the Indian Constitution
A. THAT THERE WAS NO VIOLATION OF THE FUNDAMENTAL RIGHTS.
1. Under Art. 32, it has been held that if a right, other than a fundamental right is claimed to be
violated then such questions can be addressed only in the appropriate proceedings and not on
an application under Art. 32.2 In Present case, it is observed that no Fundamental Rights of
the Petitioner or the Communities in relation have been violated; therefore, this petition must
fail.
2. There is no public purpose in filing this petition because this notification was in public good
and it is well said by Hon’ble Supreme Court that Petitioners have no locus standi to file
petition if they have no public purpose in filing petition.3
3. The petitioners have no sufficient interest in filling this petition. Thus petition should not be
maintainable before the Hon’ble Supreme Court. Any member of the public having
“sufficient interest” can approach the court for enforcing constitutional or legal rights of
other persons and redressal of a common grievance.4 The court will remedial relief in
appropriate cases where infringement is there on a large scale affecting the fundamental right
of a large number of persons or it should appear unjust or unduly harsh or oppressive on
account of their poverty or disability or socially or economically disadvantaged position.5
2
Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
3
Krishna swami v. Union of India (1992) 4 SCC. 605.
4
S.P. Gupta v. President of India and others, AIR 1982 SC 149.
5
M.C. Mehta v. Union of India, 1987 SCR (1) 819, AIR 1987 SC 965.

4. It is humbly submitted that the Omberlands Citizenship Act is in the favour of public interest
and no rights of the people were violated. It was a step towards development and helping the
people of Mumbaria in immigration.
B. THAT THERE WAS ALTERNATE STATUTORY REMEDY AVAILABLE
5. It is understood under Art. 21 that it is not an absolute right and is subject to the some
restraints evolved by the judiciary. It has been held that since Art. 32 confers “extraordinary”
jurisdiction, the same must be used wisely, sparingly and shall be brought into use under
circumstances where there is no alternate efficacious remedy is available.6 The reason for this
is: first, to reduce the increasing pendency of cases7 and second, to inspire faith in the
hierarchy of Courts and the institution as a whole.8 Therefore, the Petitioner is required to
approach the High Court or alternate methods before approaching the Supreme Court. A
petitioner complaining of an infraction of a Fundamental Right should approach the High
Court first rather than the Supreme Court in the first instance is inapplicable in the present
matter. The decision delivered by a Two Judge Bench cannot be regarded as an authoritative
pronouncement on an important constitutional issue.
6. The Supreme Court held that Petitioner must exhaust its alternative remedy before the State
Commission and should not directly come to High Court for challenging judgment of District
forum.9 When the statutory forum is created by law for redressal of grievances, this petition
should not be entertained ignoring statutory dispensation subject to certain exceptions.10
ISSUE 2: WHETHER CHALLENGING SEC.6A OF THE OMBERLANDS

CITIZENSHIP ACT AS BEING ULTRA VIRES OF THE CONTITUTION OF
OMBERLANDS?
The counsel on behalf of the Union humbly submits that Sec. 6A of the Omberlands
Citizenship Act (Hereinafter referred as “Act”) is within the legislative competence of the
6
Secretary, Govt. of India v. Alka Shubhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of
Uttar Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622.
7
PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
8
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
9
Nivedita Sharma v. Cellular Operators Association of India, (2011) 14 SCC. 337.
10
Commissioner of Income Tax v. Chhabil Dass Agrawal, (2014) 1 SCC. 603.

Union as the subject matter of the Act fall under the Union List and thus is not ultra vires to
the Constitution of Omberlands.
In order to provide citizenship to the people of Mumbaria who had entered the state of
Aurom before 25th of January, 1991 the Union has amended the Omberlands Citizenship Act.
It is humbly submitted that the pith and substance or the subject matter of the Act is
‘citizenship’ (i). Further the said subject matter falls under the Union List (ii).
A. THE PITH AND SUBSTANCE OF THE ACT IS ‘CITIZENSHIP’
1. Before the legislation with respect to a subject in one List, and touching also on a subject in
another List, is declared to be bad, the Courts apply the rule of pith and substance. 11 To
adjudge whether any particular enactment is within the purview of one legislature or the
other, it is the pith and substance of the legislation in question that has to be looked into.12
This rule envisages that the legislation as a whole be examined to ascertain its ‘true nature
and character’ in order to determine to what entry in which List it relates. 13 To ascertain the
true character of the legislation in question, one must have regard to it as a whole, to its
objects and to the scope and effect of its provisions.
2. The amendment in the act came into picture at a time when in order to resolve the situation,
on 15th May 1999, the Prime Minister of Omberlands entered into a Tripartite Agreement
with the Government of Aurom and Auro Youth United, which inter alia contained some
provisions such as, citizenship to any person of Mumbarian origin who entered the State of
Aurom from Mumbaria prior to 25th January 1991, effective measures for the detection and
deportation of illegal immigrants living in Aurom, measures to allow the Auro people to
protect and preserve their culture, reservation for the Auro people in schools, colleges and
government employment etc.
3. The object of the act as reflected in Sec. 6A is to provide legal citizenship to the people of
Mumbaria. The scope of the act is further evident in Sec. 6A wherein it declares that the
Central Government shall have the power to take all such measure as it deems necessary or
expedient for the purpose of the same all over the country. Therefore, the true nature of the
11
Premchand Jain v. R.K. Chhabra, AIR 1984 SC 981 : (1984) 2 SCC. 302.
12
MP JAIN, INDIAN CONSTITUTIONAL LAW, 591 (6th Ed, LexisNexis Butterworth Wadhwa, 2010)
13
Id.

Act is to develop a good atmosphere for the Mumbarian people which in turn would help in
providing citizenship to all and hence the subject matter of the Act is ‘citizenship’.
B. THE SUBJECT MATTER OF THE ACT FALLS UNDER THE UNION LIST
4. A succinct appraisal of the relevant provisions of the Constitution reveals that the Union has
competence in enacting the Omberlands Citizenship Act. Firstly, Art. 246(1) confers on
Parliament an ‘exclusive power’ to make laws with respect to any of the matters in the Union
List. The entries in this List are such as need a uniform law for the whole country.14 Entry 17
of Union List reads as, “Citizenship, naturalisation and aliens.”
5. It is an accepted principle that parliament can supplement any of its power under any entry in
List I and III with its residuary power.15 It is also a well-recognized principle that entries in
the lists have to be given ‘widest amplitude’16 and ‘most liberal’ construction17 has to be put
on each entry. Art. 248 (1) says that “Parliament has exclusive power to make any law with
respect to any matter not enumerated in the Concurrent List of State List.” The Union vide
Art. 248 (1) gets the power to legislate on residuary powers. The field to legislate on
residuary matters is present in Entry 97 of List I which runs as “Any other matter not
enumerated in List II and List III including matter not enumerated in the Concurrent List or
State List.”
6. Complex modern governmental administration in a federal set-up providing distribution of
legislative powers coupled with power of judicial review may raise such situations that a
subject of legislation may not squarely fall in any specific entry in List I or List III.
Simultaneously, on correct appraisal it may not be covered by any entry in List II, though on
a superficial view it may be covered by an Entry in List II.
7. In such a situation, Parliament would have power to legislate on the subject in the exercise of
residuary power under entry 97, List I, and it would not be proper to unduly circumscribe,
corrode or whittle down this power by saying that the subject of legislation was present to the
mind of framers of the constitution because apparently it falls in one of the entries in List II,
14
MP JAIN, INDIAN CONSTITUTIONAL LAW, 532.
15
Union of India v. H.S. Dhillon, AIR 1972 SC 1061.
16
Karnataka Bank Ltd. v. State of Andhra Pradesh, (2008) 2 SCC. 254: (2008) 1 SCALE 660.
17
Hans Muller v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367: (1955) 1 SCR 1284; Navinchandra
Mafatlal v. Commr. Of Income-tax, Bombay, AIR 1955 SC 58: (1955) 1 SCR 829; See also Welfare Assn. ARP v.
Ranjit P. Gohil, (2003) 9 SCC. 358: AIR 2003 SC 1266.

and thereby deny power to legislate under entry 97.18 The Supreme Court has refused to
accept any such limitation on the residuary power saying that it is not proper to unduly
circumscribe, erode or whittle down the residuary by a process of interpretation as new
developments may demand new laws not covered by any of the three Lists and these Lists
cannot be regarded as exhaustive of governmental action and activity.19
8. In the case of Dillion the majority took a more expansive view of the residuary power of the
Centre. They took a view that Art. 248 were framed in the “widest possible terms” and so the
scope of residuary power was vast. A matter not included in List II or in List III falls within
the residuary field. If the subject-matter does not fall in List II or List III, Parliament has
power to legislate on it.
9. There is no entry in the State List regarding citizenship and States can only deal with land
within its territory. It is humbly submitted that citizenship can be provided by the Union and
which is beyond the competence of a State to do so. There is no provision in the State List
and as Residuary powers of the Union List can be used to expand the scope of Entry 17 of
Union List the said Act is intra vires and within the Constitutional Limits for its subject
matters falls within the Union List.
10. Effect is not the same thing as subject matter.20 Once it is found that in pith and substance a
law falls within permitted field, any incidental encroachment by it on a forbidden field does
not affect the competence of the concerned legislature to enact the law. As the pith and
substance i.e. the subject matter of the Act is ‘citizenship’ and as such subject is within the
Union List the Act cannot be declared to be ultra vires the Constitution as the Union has got
every power to enact a legislation upon the matters within and beyond the Union List as long
as the same is not present in the State List by virtue of Art. 246(1) and 248(1) and hence the
powers acquired by the Central Government by the Act, particularly S. 6A are well within
the Constitutional limits and not beyond them.
18
Satpal & Co. v. Lt. Governor of Delhi, AIR 1979 SC 1950.
19
Id.
20
State of Bombay v. Narottamdas, AIR 1951 SC 69, 96 : 1951 SCR 51; Atiabari Tea Co. v. State of Asam, AIR
1961 SC 232 : 1961 (1) SCR 809; Kannan D.H.P. Co. v. State of Kerala, AIR 1972 SC 2301. Also, Sita Ram v.
State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 251; Southern Pharmaceutical ltd. V. State of Bihar, AIR
1983 SC 1019 : (1983) 4 SCC. 45; Krishna Bhimrao Deshpande v. Land tribunal, AIR 1993 SC 883; P.N. Krishna
Lal v. Govt. of Kerala, (1995) Supp (2) SCC 187; Kartar Singh v. State of Punjab, (1994) 3 SCC. 569 : 1994 Cri LJ
3139; Union of India v. Shah Goverdhan L. Kabra Teachers College, (2002) 7 SCALE 435.


AGREEMENT CONSTITUTIONAL?
It is humbly submitted before the Hon’ble court that the Citizenship Act is constitutionally
valid. First, the amendment made to the Citizenship Act does not violate any fundamental
rights of the citizens of Omberlands. Second, The Republic of Omberlands was bound by the
Protection from Refoulment.
A. NO FUNDAMENTAL RIGHTS HAVE BEEN VIOLATED BY THE REPUBLIC OF

OMBERLANDS.
i. AUTHORITIES HAVE NOT FAILED TO APPLY THE PRINCIPLE OF EQUALITY U/A 14
1. Equality before law means that among equals the law should be equal and equally
administered, that like should be treated alike.21 Equal Protection of the laws means
subjection to equal law, applying to all in the same circumstances.22 Therefore, equal law can
be applied only to those in similar circumstances.23 The Supreme Court has laid down the test
to check if a classification is reasonable.
2. If we go by the bare reading of Art. 14 is “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.”24 The word
any person includes every person who is inside the territory of Omberlands.
3. It has been held in a number of cases that for a classification to be reasonable,25 it should:
a) Be found Intelligible differentia: The intelligible differentia behind this act is to protect the
Mumbarians who have entered into the country of Omberlands and have been provided with
the citizenship according to the amendment made in the Citizenship Act. The differentiation
is not based on their religion but on their status of being an illegal citizen, the protection
aimed to provide is based on those who are/have been/will continue to be suffering based on
21
JENNINGS, LAW OF THE CONSTITUTION 9 (3rd ed.).
22
Lindsley v. Natural Carbonic Gas Co., (1910) 220 US 61.
23
SHUKLA, V.N., CONSTITUTION OF INDIA 46 (11th ed. 2010).
24
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722, 741.
25
R.K.Garg v. Union of India, AIR 1981 SC 2138; Re-Special Courts Bill, AIR 1979 SC 478; Air India v. Nargesh
Meerza, AIR 1981 SC 1829; R.C.Cooper v. Union of India, AIR 1970 SC 564; Ameeroonisa v. Mahboob, AIR 1953
SC 91; K. Thimmappa v. Chairman Central Board of Directors SBI, AIR 2001 SC 467.

their nationality. The crucial point here to understand is that it is not the government of
Omberlands or the Principle Act that differentiates based on the religion and nationality but
the neighbouring countries that are subjecting their residents to such torture based on their
religion and hence to address that, the provisions from our side had to be made accordingly.
b) Legitimate Aim: Legitimate aim behind this act is under Art. 51 of the constitution that the
state shall endeavor to promote international peace & Security. The citizenship act gives
citizenship to Mumbarians who have entered the territory of Omberlands on or before 25th
January. Here is no violation of right to equality. The concept of equality allows differential
treatment but it prevents distinctions that are not properly justified. Justification needs each
case to be decided on a case to case basis.26
4. Art. 14 applies to “any person” and is not limited to citizens alone. Both individuals and
juristic persons are entitled to the benefit of Art. 14. It provides: “The state shall not deny to
any person equality before the law or equal protection of laws within the territory of India”.27
The obligation imposed on the state by Art. 14 is for the benefit of all persons, within the
territory of India. The benefit of Art. 14 is, therefore, not limited to citizens. Every person
whether natural or artificial, whether he is a citizen or an alien,28 is entitled to the protection
of this Art.29
5. Therefore, it is humbly submitted that it clearly does not violates Art. 14 of Omberlands
constitution because State of Aurom being the minority class is provided with the equal
protection of law.
ii. NO VIOLATION OF ARTICLE 21

6. It is humbly submitted before the Hon’ble court that the amendment to the Citizenship Act
does not violate Art. 21. To establish of the violation Art. 21, the act should be subjected to
the equality test of Art. 14 and test of reasonableness under Art. 19.30 Art. 14 ensures
fairness31 and guarantees against arbitrariness.32 It provides that every action of the
26
M. Nagaraj v. Union of India, (2006) 8 SCC 212 : AIR 2007 SC 71.
27
Ibid.
28
NHRC v. State of Arunachal Pradesh, 1996, ISCC 295.
29
NARENDER KUMAR, CONSTITUTIONAL LAW OF INDIA 105-106 (2007).
30
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
31
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101; Mahesh Chandra v. Regional
Manager, U.P. Financial Corpn, AIR 1993 SC 935.

government must be informed by reasons and guided by public interest.33 Art. 19 provides
that a restriction can be characterized to be reasonable if it strikes a balance between the
fundamental right and restriction imposed thereon.34
7. The union has duty to prepare some welfare laws in the benefits of the Mumbarian people as
mentioned under Art.38 of the constitution. Clause 6 of the Assam Accord reads as follows:
“Constitutional, legislative and administrative safeguards, as may be appropriate shall be
provided to protect, preserve and promote the culture, social, linguistic identity and heritage
of the Assamese people”.
8. In present case, the Mumbarians has been persecuted as a minority in Omberlands and to
save them from persecution the union has decided to give citizenship to that person. The
Omberlands Constitution guarantees the right to life and personal liberty to all persons. The
protection of Art. 21 of the constitution is available to citizens as well as non-citizen, and
they also have right to live, as long as they are physically in the boundaries of the union, with
human dignity. Art. 21 provides “No person shall be deprived of his life or personal liberty
except according to procedure established by law”. This right has been held to be the heart of
the constitution.35
9. Art. 21 secures two rights:
i.Right to life; and
ii.Right to personal liberty Art. 21 prohibits the deprivation of the above rights except
according to procedure established by law. It is well settled that an alien can claim the
protection of Art. 21. It, however, does not include the right to reside and settle in India, as
mentioned in Art. 19 (1) which is applicable to the citizens of the country36.
10. The Supreme Court has asserted that Art. 21 is the heart of the Fundamental Rights.37 It has
enough positive content and is not merely negative in its reach even though Art. 21 are
32
Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872; Netai Bag v. State of West Bengal, AIR 2000 SC
3313.
33
M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160; L.I.C v. Consumer Education and Research
Centre, AIR 1995 SC 1811.
34
Om Kumar v. Union of India, AIR 2000 SC 3689.
35
l.R. Coelho v. State of T.N., AIR 2007, SC 891.
36
Cherchi De Raedt v. Union of India, AIR 1991 SC 1886.
37
Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178: (1993) 1 SCC. 645.

worded in negative terms.38 Accordingly, the Supreme Court has implied a whole bundle of
human rights out of Art. 21 by reading the same along with some Directive Principles.
11. Just as the state is under an obligation to protect the life of every citizen in this country, so
also the state is under an obligation to protect the life of the persons who are not citizens.
Thus, the Immigrants can avail of the benefit under Art. 21 of the Constitution in the same
way as the citizens of India. They cannot be exposed to threat to life and personal liberty.
State being governed by the rule of law is bond to protect the life and liberty of every human
being, be he a citizen or otherwise.
12. The Supreme Court held that foreigners are entitled to protection of Art. 21 of the
Constitution of India.39 Thus, the State is bound to protect the life and liberty of every human
being, whether s/he be a citizen or otherwise. The Art. mandates that no person shall be
deprived of his life and personal liberty except according to the procedure established by
law40 India, being a signatory to the International Covenant on Civil and Political Rights,
1966 compels Art. 21 of the Indian Constitution to be interpreted in conformity with
international law.41
13. Therefore the State has an obligation to preserve the life and livelihood of every person. That
which alone can make it possible to live must be declared to be an integral component of the
right to life.42 The new citizenship amendment will save the lives of people.
B. PROTECTION FROM REFOULEMENT.
14. Non-citizens enjoy the right to be protected from refoulement, or deportation to a country in
which they may be subjected to persecution or abuse. Expulsions of non-citizens should not
be carried out without taking into account possible risks to their lives and physical integrity
in the countries of destination.43 With regard to non-refoulement, Art. 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides:
38
P. Rathinam v. Union of India, AIR 1994 SC 1844 : (1994) 3 SCC. 394.
39
Louis De Raedt v. Union of India (1991) 3 SCC. 544.
40
DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 364 (14th ed, 2010).
41
People’s Union for Civil Liberties v. Union Of India (1997) 1 SCC. 301.
42
ParamanandKatara v. Union of India, AIR 1989 SC 2039.
43
Human Rights Committee, concluding observations on the third periodic report of Yemen (A/57/40
(vol. I), para. 83 (18)); see European Court of Human Rights, Ahmed v. Austria, No. 25964/94, judgement of 17
December 1996.

“1. No State Party shall expel, return (‘refouler’) or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.
“2. For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights.”
15. Art. 14 of the Universal Declaration of Human Rights, which speaks of the right to enjoy
asylum, has to be interpreted in the light of the instrument as a whole, and must be taken to
mean something. It implies that although an asylum seeker has no right to be granted
admission to a foreign State, equally a State which has granted him asylum must not later
return him to the country whence he came. Moreover, the Art. carries considerable moral
authority and embodies legal prerequisite of regional declarations and instruments.44
16. The Court dealt with the issue of Chakma settled in Arunachal Pradesh. The Court directed
the State to protect the threatened Chakmas and no eviction till there was an amicable
settlement of the issues.45 The Ministry of Home Affairs to grant citizenship to the Chakma
and Hajong tribal who migrated to India in 1964-69 and were settled in the State of
Arunachal Pradesh.46
17. UNHCR is of the view that the prohibition of refoulement of immigrants, as enshrined in Art.
33 of the 1951 Convention and complemented by non-refoulement obligations under
international human rights law, satisfies these criteria and constitutes a rule of customary
international law.47 As such, it is binding on all States, including those which have not yet
become party to the 1951 Convention and/or its 1967 Protocol.48
44
State of Arunachal Pradesh v. Khudiram Chakma AIR 1994 SC 1461.
45
National Human Rights Commission v. State of Arunachal Pradesh AIR 1996 SC 1235.
46
Committee for C.R. of C.A.P. & Ors. v. State of Arunachal Pradesh & Ors Writ Petition 510 OF 2007, Civil
Original Jurisdiction.
47
UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law, Response to the
Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR
1938/93, 2 BvR 1953/93, 2 BvR 1954/93
48
The prohibition of refoulement of refugees under customary international law also applies, with regard to non-
European refugees, in States which are party to the 1951 Convention, but which maintain the geographical limitation
provided for Art. 1B(1) of the Convention.

18. Obligations under the 1966 Covenant on Civil and Political Rights,49 as interpreted by the
Human Rights Committee, also encompass the obligation not to extradite, deport, expel or
otherwise remove a person from their territory, where there are substantial grounds for
believing that there is a real risk of irreparable harm, such as that contemplated by Art. 6
[right to life] and 7 [right to be free from torture or other cruel, inhuman or degrading
treatment or punishment] of the Covenant, either in the country to which removal is to be
effected or in any country to which the person may subsequently be removed.50 The
prohibition of refoulement to a risk of serious human rights violations, particularly torture
and other forms of ill-treatment, is also firmly established under regional human rights
treaties.51
ISSUE 4: WHETHER SEC.3 OF OMBERLANDS CITIZENSHIIP ACT IS VALID?
The respondents humbly submit that the Petitioner has wrongly challenged Sec.3 of
Omberlands Citizenship Act. This argument is fourfold. First, challenging on the basis of
Art. 13 Second, challenging on the basis of Fundamental Rights. Third, challenging on the
basis of Art. 15. Fourth, challenging on the basis of International Conventions.
A. UNION AND STATE BOUND BY THE CONTRACTS
The respondents humbly submit that the petitioner is wrongly challenging Sec.3 as the new
Sec. will become constitutionally invalid because it will be inconsistent with fundamental
rights.
49
1966 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, entered into force 23 March 1976
[hereinafter: “ICCPR”].
50
With regard to the scope of the obligations under Art. 7 of the ICCPR, see Human Rights Committee in its
General Comment No. 20: Art. 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or
punishment), 10 March 1992, U.N. Doc. HRI/ GEN/1/Rev.7, para. 9 (“States parties must not expose individuals to
the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way
of their extradition, expulsion or refoulement”).
51
See, for example, the jurisprudence of the European Court of Human Rights, which has held that nonrefoulement
is an inherent obligation under Art. 3 of the ECHR in cases where there is a real risk of exposure to torture, inhuman
or degrading treatment or punishment, including, in particular, the Court’s decisions in Soering v. United Kingdom,
Application No. 14038/88, 7 July 1989 and subsequent cases, including Cruz Varas v. Sweden, Application No.
15567/89, 20 March 1991.

i. LAWS TO BE MADE IN ACCORDANCE TO ART. 13

1. According to the said Art.52, The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void. The rights referred here is the Fundamental Rights
which are getting violated as petitioner is demanding an amendment in the citizenship by
birth which will affect the child’s freedom of life and liberty and will also discriminate the
child born in Omberlands from other children born in Omberlands, thus taking away the right
to equality. Any law made in contravention of Part III is dead from the very beginning and
cannot at all be taken notice of or read for any purpose whatsoever.53
2. Here is no bar to making changes and to adopt the Constitution to the requirements of
changing times without touching the foundation or altering the basic constitutional pattern.
Hence, the respondent contends before this Hon’ble Court that the current Sec.cannot be
challenged by the petitioner as it will be in contravention with Fundamental Rights and
therefore will be invalid under Art. 13 of the Constitution.
ii. NO VIOLATION OF ARTICLE 14

3. “Equality is one of the magnificent corner-stones of Indian democracy.” 54
Right to equality
has been declared by the Supreme Court as a basic feature of the constitution.55According to
the said Art.56 The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. The doctrine of equality before law is a
necessary corollary of Rule of Law which pervades the Indian Constitution.57 This means
that even a constitutional amendment offending the right to equality will be declared
invalid.58
4. It may be noted that the right to equality has been declared by the Supreme Court as a basic
feature of the Constitution.59 Neither Parliament nor any State Legislature can transgress the
52
INDIAN CONSTI. art 13.
53
Rakesh Vij v. Raminder Pal Singh Sethi,(2005) 8 SCC. 504.
54
Indra Sawhney v. UOI 1992 Supp (3) SCC 212.
55
M Nagraj v. UOI, (2006) 8 SCC. 212.
56
57
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC. 34.
58
For discussion on the “Basic Features of the Constitution”.
59
M Nagraj v. UOI; (2006) 8 SCC. 212.

principle of equality.60 Therefore, the state cannot discriminate persons living within the
territory of India on the ground that the person born India, if both his parents are illegal
immigrants then he should not be considered as citizen of India. Hence, to raise the plea of
Art. 14 of the Constitution, the element of discrimination and arbitrariness has to be brought
out in clear terms.61Wherever we find arbitrariness or unreasonableness there is a denial of
rule of law.
a) The authorities have applied principle of reasonableness and the impugned act is well
within the contours of the procedure established by law:
5. It is submitted that Art. 14 as including the principles of reasonableness only require the
government to act on reasonable grounds.62 The court function is to check whether the
decision taken is fair and free from the taint of unreasonableness and has substantially
complied with the norm of procedure.63 The impugned act no way takes away Fundamental
Rights or vitiates any procedure established by law. Atchison, 30 Topeka & Santa Fe R. Co.
v. Matthews64, that upon the class or caste duties and burdens different from those resting
upon the general public indeed the very idea of classification is that of equality, so that it
goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality”. Sec 3 Citizenship Act, 1955 is reasonable because it provides a fair right to
have a right to have their nationality to those children who’s either of the parents is legal.
Every child of this country has right to know his identity. The respondent cannot differentiate
children born on the place of birth.
b) The authorities have applied principle of reasonableness to the object or purpose of the
legislation:
6. The object of the Sec. was for the acquisition and determination of Indian citizenship. The
underlying object of Art. 14 is to secure to all persons, citizens or non- citizens, the equality
60
Kesvananda Bharti v. State of Kerala, (1973) 4 SCC. 225.
61
K. Karunakaran v. State of Kerala and Anr. MANU/SC/0209/2000.
62
JUSTICE Y.V CHANDRACHUD, JUSTICE S.S SUBBRAMANI, JUSTICE B.P BANERJEE , DURGA DAS
BASU'S COMMENTARY ON THE CONSTITUTION OF INDIA 1360 (8th ed. 2008).
63
Fertilizer Corpn Kamgar Union v. Union of India, (1981) 1 SCC. 568, 584.
64
Atchison, 30 Topeka & Santa Fe R. Co. v. Matthews 174 U.S. 96 (1899)

of status and opportunity referred to in the Preamble to our Constitution.65Therefore, Art. 14

provides for equal protection of law to every citizen of Omberlands.
iii. NO VIOLATION OF ARTICLE 21

7. The right to life guaranteed under Art. 21 embrace within its sweep not only physical
existence but the quality of life. If any statutory provisions run counter to such a right, it must
be held unconstitutional.66The Supreme Court has asserted that Art. 21 is the heart of the
Fundamental Rights.67 According to the said Art. 2168, No person shall be deprived of his life
or personal liberty except according to procedure established by law. This Court69 interpreted
the word "liberty" on the lines of the meaning accorded to liberty in the 5th and 14th
amendments to the U.S. Constitution.70 Accordingly it was held “Personal Liberty' in Art. 21
takes in all the rights of a man. The State has a duty to protect their life, liberty, dignity and
worth of an individual which should not be jeopardized or endangered. If in any
circumstance the State is not able to do so, then it cannot escape the liability to pay
compensation.71 The Supreme Court has evolved the right to compensation in cases of
established unconstitutional deprivation of personal liberty or life.72
a) Right to livelihood
8. The word "life" occurring in Art. 21 too have received a broad and expansive interpretation,
while it is not necessary to refer to all of them. The right to life which is guaranteed by Art.
21 includes the right to livelihood. An equally important facet of that right is the right to
livelihood because; no person can live without the means of living, that is, the means of
livelihood. Deprive a person of his right to livelihood and you shall have deprived him of his
life.73 If the right to livelihood is not treated as a part and parcel of the constitutional right to
life, the easiest way of depriving a person of his right to life would be to deprive him of his
65
Natural Resources Allocations, Re Special Reference Number 1 of 2012, (2012) 10 SCC 1 (77).
66
Confederation of Ex- servicemen Association v. UOI, (2006) 8 SCC. 399.
67
Unni Krishnan v. state of Andhra Pradesh; (1993) 1 SCC. 645.
68
69
Rajesh Kumar And Anr. vs State Of U.P. And Ors., 1963CriLJ329.
70
Munn v. Illinois, (1877) 94 U.S. 113.
71
S.S. Ahluwalia v. Union of India, AIR 2001 SC 1309.
72
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
73
Board of Trustees of the Port of Bombay v. Dilipkumar R Nandkarni, (1983) 1 SCC. 124.

means of livelihood to the point of abrogation.74 Therefore, it is humbly contended that the
Respondent is following the above principle and is not depriving the immigrants from right
to livelihood.
b) Right to education
9. The right to education flows directly from right to life. The right to life under Art. 21 and the
dignity of an individual cannot be assured unless it is accompanied by the right to education.
The State Government is under an obligation to make endeavour to provide educational
facilities at all levels to its citizens.75 Education is enlightenment. It is the one that lends
dignity to a man as was rightly observed by Gajendragarkar, J.76 Hence, the Respondent
humbly submits that the migrants who are citizens of the country according to Art. 5, they
will be deprived of right to education if it is taken from them.
c) Right to shelter
77
10. In several other cases, the Court has read the right to shelter in Art. 21 to guarantee right to
residence and settlement. Protection of Life is guaranteed by Art. 21 encompasses within its
ambit the right to shelter to enjoy the meaningful right to life. Hence, the Respondent
demands that if Sec.3 of Omberlands Citizenship Act is amended, then, it will take away the
right to shelter of the people who are living in the country from past two decades. Thus, it is
humbly submitted before this Hon’ble Court that the state cannot take away the right to life
and liberty of a child who is born in the territory of India just because both of his parents are
illegal immigrants.
iv. NO VIOLATION OF ARTICLE 15 OF THE CONSTITUTION

11. Art. 15(1), Part III of the Constitution talks about Prohibition of discrimination of citizens on
the grounds of religion, race, caste, sex or place of birth them, be subject to any disability,
liability, restriction or condition with regard to public places. 78Art. 15(1) prohibits
74
Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors., 1985 SCC. (3) 545.
75
Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.
76
University of Delhi v. Ram Nath, MANU/SC/0143/1963 : (1963) IILLJ 335 SC
77
PG Gupta v. State of Gujrat, (1995) Supp (2) SCC. 182; State of Karnataka v Narasimhamurthy,(1995) 5 SCC.
524.
78
INDIAN CONSTI. art. 15(1).

discrimination on the basis of place of birth but not residence. Therefore, the person born in
Omberlands whose both of the parents are illegal immigrants cannot be discriminated from
those who are born in Omberlands. The discrimination was solely on the basis of place of
birth such discrimination is clearly violative of Art. 15(1) also.79
12. Neither caste nor religion nor place of birth will be the uniform element of common
attributes to make them a class of citizens."80 The Constitution embodies a vision of social
transformation. It represents a break from a history marked by the indignation and
discrimination attached to certain identities and serves as a bridge to a vision of a just and
equal citizenship.81 It violates Art. 15(1) which lays down that there shall be no
discrimination o the basis of place of birth and it is urged that the provision for ‘Nativity
claimed” in the form is really a camouflage for discriminating on the ground of place of
birth. Hence, the Art. clearly states that the person cannot be discriminated to use any of the
public places on the basis of place of birth.
B. STATE BOUND BY INTERNATIONAL CONVENTIONS
i. UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948):

13. According to Art. 2, 15 OF UDHR everyone is entitled to all the rights and freedoms set forth
in this Declaration, without distinction language, religion, political or other opinion, national
or social origin, property, birth or other status.82 And, the children born in Omberlands either
of whose parents are illegal immigrants cannot be denied of their citizenship because it will
raise the question of nationality to them. It will take away the rights to a nationality of those
children born in the country as they will not have any nationality as to which country they
belong to and where they will go to settle.
14. Also, the Art. protects person’s right to change his nationality. In the present case, the
Petitioner is demanding to change the right to nationality of those children born in the
territory of Omberlands and either of parents is illegal immigrant and deprive them of his
nationality. This will clearly violate the Art. 15(2) of UDHR.
79
Abodha Kumar Mohapatra and Ors. v. State of Orissa and Ors, AIR 1969 Ori 80.
80
Kailash Chand Sharma and Ors. v. State of Rajasthan and Ors., Civil Writ Petition No. 833/2010.
81
Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors., Writ Petition (Civil) no. 373 of
2006.
82
UDHR art. 2.

ii. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966

15. The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty
adopted by the United Nations General Assembly. In force from 23 March 1976 in
accordance with Art. 49 of the covenant. Under Art. 1, 6, 24 it is the right of every child to be
recognized and to know status and cannot be deprived of his life on the basis of religion,
national or social origin, birth.
16. The Petitioner is demanding to not give citizenship to those children born in Omberlands
either of whose parents are illegal immigrants are not granted citizenship then it will raise the
question of nationality to them. But it will take away the rights to a nationality of those
children born in the country as they will not have any nationality as to which country they
belong to and where they will go to settle. Therefore, the Respondent humbly submits before
the Hon’ble Court that it is performing its duty by following the conventions.
iii. CONVENTION ON THE RIGHTS OF THE CHILD, 1989

17. Under Art. 5, 7, 8 of Conventions on the right of the child, the Respondent is taking the
responsibility to protect the child and make ensure that the child exercises the rights such as
right to identity including right from birth to a name, the right to acquire a nationality and
parents perform their duties. Also, the Government is ensuring to preserve the identity.
Therefore it is humbly contended that the Respondent cannot take away the rights of the
children without considering their right to acquire a nationality.
iv. CONVENTIONS ON STATELESSNESS, 1954

18. The 1954 Convention is designed to ensure that stateless people enjoy a minimum set of
human rights. It establishes the legal definition of a stateless person as someone who is “not
recognized as a national by any state under the operation of its law.” Simply put, this means
that a stateless person is someone who does not have the nationality of any country.
19. Perhaps the most important provision of the convention establishes that children are to
acquire the nationality of the country in which they are born if they do not acquire any other
nationality. It also sets out important safeguards to prevent statelessness due to loss or
renunciation of nationality and state succession. Therefore, the Respondent is ensuring to
establish safeguards to protect the children from identifying the nationality.

ISSUE 5: WHETHER REPUBLIC OF OMBERLANDS AND STATE OF AUROM ARE

LIABLE TO PAY COMPENSATION TO THE PEOPLE OF AUROM FOR
COMMITTING A BREACH OF THE AGREEMENT?
The respondents submit that they are not liable to pay compensation to the people of Aurom and
hence, contend that the petitioner has wrongfully challenged the petition. The respondent
contends before the Hon’ble Court that it has not committed any breach of the agreement. This
argument is fourfold into 2 limbs. First, challenging the authenticity of reports. Second,
negligence committed by previous government.
A. CHALLENGING THE AUTHENTICITY OF THE REPORTS
1. It is humbly contended before this Hon’ble Court that there is no authentic value of the
reports published by the magazine. Newspaper reports by themselves are not evidence of the
contents thereof. Those reports are only hearsay evidence. These have to be proved and the
manner of proving a newspaper report is well settled.83 We cannot take judicial notice of the
facts stated in a news-item being in the nature of hearsay secondary evidence, unless proved
by evidence alunide.84 The Supreme Court held that the newspaper is not admissible in
evidence.85 Even if newspapers are admissible in evidence without formal proof, the paper
itself is not a proof of his contents.86
2. Therefore, the Respondent contends that the reports had no authoritative value. These cannot
be considered as evidence to show that the Government has not performed its duty. But
government is taking actions for the welfare of the people.
B. SITUATIONS HEREIN ARE NOT IN CONTROL OF THE PRESENT

GOVERNMENT
3. The elements of tort of negligence consist of first, the duty of care; second, duty is owed to
the plaintiff; and the duty has been carelessly breached.87Negligence means more than
83
Quamarul Islam v. S.K. Kanta And Ors, 1994 (1) SCR 210.
84
S.P. Shenbagamoorthy v. Dr. Chenna Reddy, The Governor, (1994) 2 MLJ 23.
85
Laxmi Raj Shetty v. State of Tamil Nadu, AIR 1988 SC 1274, 1988 SCR (3) 706.
86
Ratan Lal Soni v. The State of Rajasthan And Ors., Writ petition (Civil) No. 143/2018.
87
The Managing Director, Kerala v. Deepti Singh, Civil Appeal No. 6038/2015.

headless or careless conduct, whether in commission or omission.88 Negligence is the

omission to do something which a reasonable man would do, or doing something which a
prudent or reasonable man would not do.89 Negligence also is an omission to do something
which a reasonable man, guided by those ordinary considerations which ordinarily regulate
human affairs, would do, or the doing or something which a reasonable and prudent man
would not do.90 It was the previous Government who was negligent in safeguarding the
people of Aurom. Initially if the previous government had taken actions to strengthen the
borders, and then illegal immigrants would have not come.
4. Also, there was negligence on the part of previous government as even if the illegal
immigrants came, they could have initially taken strict actions against the forged and
fabricated documents. It would not have been so difficult for the present government to
differentiate them from the citizens of the country. Hence, the Respondent prays before this
Hon’ble Court that the present government needs time to resolve this issue and the
government is already trying to take actions such as signing into the agreement and has
deported 926 illegal immigrants and trying to secure the riverine boundary.
88
Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1.
89
Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781.
90
Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum & Ors, 1992 ACJ 792, (1991) 1 GLR 650.

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare:
1. That the Public Interest Litigation is not maintainable under Art. 32 of the Constitution of
Omberlands, 1950.
2. That direction may not be made to the effect that Sec.6A of the Omberlands Citizenship Act
is ultra vires of the Constitution of Omberlands
3. That direction may not be made that the action of the Republic of Omberlands in amending
the Omberlands Citizenship Act on the basis of an agreement is unconstitutional.
4. That direction may be issued that Sec.3 of the Omberlands Citizenship Act, insofar as it
grants birthright citizenship to the children born in Omberlands, where even one of the
parents is an illegal immigrant, is constitutional.
5. That direction may be issued that the other provisions of the Tripartite Agreement of 1999
are not binding on the Republic of Omberlands and the State of Aurom and that they are not
liable to provide compensation to the Auro people for committing a breach thereof.
AND/OR
Pass any such order, writ or direction as the Hon’ble Court deems fit and proper, for this the
Respondents shall duty bound forever pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSEL FOR THE RESPONDENTS

NHRC - Gnlu Moot Court Competition, 2019: Before Honourable Supreme Court of Omberlands

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NHRC - Gnlu Moot Court Competition, 2019: Before Honourable Supreme Court of Omberlands

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NHRC-GNLU NATIONAL MOOT COURT COMPETITION, 2019

TEAM CODE: 111

NHRC - GNLU MOOT COURT COMPETITION, 2019

Society for the Welfare of Indigenous People of PETITIONER

State of Aurom RESPONDENT 2

MEMORANDUM ON BEHALF OF RESPONDENT

MEMORANDUM ON BEHALF OF RESPONDENT Page 1

LIST OF ABBREVIATIONS ......................................................................................................... 4

MEMORANDUM ON BEHALF OF RESPONDENT Page 2

I. LAWS TO BE MADE IN ACCORDANCE WITH ART. 13 ...................................................................... 26

II. NO VIOLATION OF ART. 14........................................................................................................ 26

MEMORANDUM ON BEHALF OF RESPONDENT Page 3

SCC Supreme Court Cases

UDHR Universal Declaration of Human Rights

A.I.R All India Reports

ICCPR International Covenant on Civil and Political

UNHRC United Nation Human Rights Commission

PIL Public Interest Litigation

SCJ Supreme Court Journals

MEMORANDUM ON BEHALF OF RESPONDENT Page 4

S. NO. NAME OF CASES PG. NO.

MEMORANDUM ON BEHALF OF RESPONDENT Page 5

35 M. Nagaraj v. Union of India, (2006) 8 SCC 212 : AIR 2007 SC 71. 21

MEMORANDUM ON BEHALF OF RESPONDENT Page 6

77 Union of India v. Paul Manickam, AIR 2003 SC 4622. 16

S. NO. NAME OF CASES PG. NO.

S. No. NAME OF THE BOOK

S. No. NAME OF THE STATUTE

1 The Constitution of India, 1950 [No. 101 of 2016]

MEMORANDUM ON BEHALF OF RESPONDENT Page 7

TABLE OF INTERNATIONAL CONVENTIONS

S. No. NAME OF THE CONVENTION

1 United Nations Conference on Environment and development, 1992

MEMORANDUM ON BEHALF OF RESPONDENT Page 8

MEMORANDUM ON BEHALF OF RESPONDENT Page 9

AFTER THE INDEPENDENCE

MEMORANDUM ON BEHALF OF RESPONDENT Page 10

STEPS TAKEN BY OMBERLANDS TO RESOLVE THE SITUATION

MEMORANDUM ON BEHALF OF RESPONDENT Page 11

Whether the PIL brought before the Supreme Court is maintainable?

Whether Sec.3 of Omberlands Citizenship Act is valid?

MEMORANDUM ON BEHALF OF RESPONDENT Page 12

ISSUE 1: WHETHER THE PIL BROUGHT BEFORE THE SUPREME COURT IS

ISSUE 2: WHETHER SEC.6 A OF OMBERLANDS CITIZENSHIP ACT IS ULTRA

ISSUE 3: WHETHER THE ACTION OF THE REPUBLIC OF OMBERLANDS IN

ISSUE 4: WHETHER SEC.3 OF OMBERLANDS CITIZENSHIP ACT IS VALID?

MEMORANDUM ON BEHALF OF RESPONDENT Page 13

ISSUE 5: WHETHER THE REPUBLIC OF OMBERLANDS AND STATE OF AUROM

MEMORANDUM ON BEHALF OF RESPONDENT Page 14

A. THAT THERE WAS NO VIOLATION OF THE FUNDAMENTAL RIGHTS.

MEMORANDUM ON BEHALF OF RESPONDENT Page 15

B. THAT THERE WAS ALTERNATE STATUTORY REMEDY AVAILABLE

ISSUE 2: WHETHER CHALLENGING SEC.6A OF THE OMBERLANDS

MEMORANDUM ON BEHALF OF RESPONDENT Page 16

A. THE PITH AND SUBSTANCE OF THE ACT IS ‘CITIZENSHIP’

MEMORANDUM ON BEHALF OF RESPONDENT Page 17

MEMORANDUM ON BEHALF OF RESPONDENT Page 18

MEMORANDUM ON BEHALF OF RESPONDENT Page 19

ISSUE 3: WHETHER THE ACTION OF THE REPUBLIC OF OMBERLANDS IN

A. NO FUNDAMENTAL RIGHTS HAVE BEEN VIOLATED BY THE REPUBLIC OF

i. AUTHORITIES HAVE NOT FAILED TO APPLY THE PRINCIPLE OF EQUALITY U/A 14

MEMORANDUM ON BEHALF OF RESPONDENT Page 20

ii. NO VIOLATION OF ARTICLE 21