TM44

THE LAW LEARNERS & ANSAL UNIVERSITY,

GURUGRAM

1ST NATIONAL ONLINE MOOT COURT COMPETITION, 2020

Before

The Hon’ble Supreme Court of Indica

ORIGINAL WRIT JURISDICTION

[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA]

LEADER SIYARAM UMESH.............................................................................PETITIONER 1.

LEADER TANUJ JHA.........................................................................................PETITIONER 2.

M.P. SAHIYA BOITRA.......................................................................................PETITIONER 3.

ASISIS LEADER OSAWUDDIN KUWAISI......................................................PETITIONER 4.

v.

UNION OF INDICA & Ors..................................................................................RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE SUPREME COURT

OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONER

 TLL and Ansal University’s 1st National Online Moot Court Competition 2020
[TC-TM44]

Table of Contents
LIST OF ABBREVIATIONS........................................................................................................................3
INDEX OF AUTHORITIES.........................................................................................................................5
STATEMENT OF JURISDICTION...............................................................................................................7
STATEMENT OF FACTS...........................................................................................................................8
ISSUES RAISED.....................................................................................................................................10
SUMMARY OF ARGUMENTS................................................................................................................11
ARGUMENTS ADVANCED.....................................................................................................................13
1. WHETHER OR NOT THE CAA IS CONSTITUTIONALLY VALID?...................................................13
[1.1] UNCONSTITUTIONALITY OF CAA.........................................................................................13
[1.2] ARTICLE 14...........................................................................................................................13
[1.3] ARTICLE 21...........................................................................................................................15
[1.4] ARTICLE 51(C) & ARTICLE 253..............................................................................................16
[1.5] BASIC STRUCTURE OF CONSTITUTION.................................................................................16
2. WHETHER OR NOT THE PROTESTS LEADING TO RIOTS COULD BE INCLUDED AS VALID
PEACEFUL PROTESTS?........................................................................................................................17
[2.1] LEGALITY OF PROTEST.........................................................................................................17
[2.2] PEACEFUL PROTEST AS FUNDAMENTAL RIGHT...................................................................17
[2.3] LEGALITY OF PROTEST.........................................................................................................18
3. WHETHER OR NOT THE FUNDAMENTAL RIGHTS OF ANY SECTION IS BEING VIOLATED BY THE
ACT AND WHETHER OR NOT THE GOVERNMENT FAILED TO FULFIL ANY CONSTITUTIONAL
DIRECTIVES?......................................................................................................................................21
[3.1] THE CITIZENSHIP (AMENDMENT) ACT OF 2019 IS VIOLATIVE OF ARTICLE 14 OF THE
CONSTITUTION..............................................................................................................................21
[3.2] INCONSISTENT WITH THE ARTICLE 51(C) AND ARTICLE 253 OF THE CONSTITUTION..........21
4. WHETHER OR NOT THE INTERNET BAN HAS VIOLATED ANY FUNDAMENTAL RIGHT TO THE
INDICAN CONSTITUTION?...................................................................................................................22
[4.1] THE RECOGNITION OF INTERNET AS A MEDIUM TO FUNDAMENTAL RIGHT......................22
[4.2] RESTRICTIONS ACCORDING TO ARTICLE 19(2).....................................................................23
[4.3] ARTICLE 19(2) WAS NOT BEING VIOLATED WHEN INTERNET BAN WAS CALLED FOR THE
PROTESTS ON CAA.........................................................................................................................24
[4.4] THE BAN WAS BASED ON MERE CONJECTURES, SPECULATIONS & SIMPLE ISOLATED MEDIA
REPORTS OF PUBLIC NUANCES & ROAD BLOCKAGE; THE ORDER WAS NOT PROHIBITIVE OR
PREVENTIVE IN NATURE; NO ALTERNATIVE METHODS WERE JUSTIFIED BY THE RESPONDENTS
AND THUS IS INVALID.....................................................................................................................26
PRAYER................................................................................................................................................28

2|Page
-Memorial on Behalf of the Petitioner-
 LIST OF ABBREVIATIONS

Abbreviations Expansions
& And

Anr. Another

A.I.R. All India Reporter

All E.R. All England Law Report

Art. Article

CAA Citizenship Amendment Act

CAB Citizenship Amendment Bill

Ed. Edition

Govt. Government

Id ibidem

i.e. that is

JT Judgement Today

LLJ Labour Law Journal

MAD LJ Madras Law Journal

NRC National Register of Citizens

Ors. Others

QB Queen Bench
SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Sec. Section

v./ vs. Versus

 INDEX OF AUTHORITIES

LEGISLATIONS:
The Constitution of Indica, 1950.

Indican Penal Code, 1862

Code of Criminal Procedure, 1974

STATUTES:
Citizenship Amendment Act, 2019.

BOOKS:
Constitution of Indica by P.M. Bakshi.

ARTICLES:
Shankar Narayanan, RETHINKING “NON-ARBITRARINESS” 4 NLUD Student
Law Journal 133(2017)

CASES:
1. State of West Bengal v. Anwar Ali Sarkar (1952) SCR 284
2. Navtej Singh Johar v. Union of India AIR 2018 SC 4321
3. Sharma Transport v. State of A.P. (2002) 2 SCC 188
4. Shayara Bano v. Union of India (2017) 9 SCC 1
5. Ramana Dayaram Shetty v. International Airport Authority of India (1979) 2 LLJ 217
6. Anwar v. the State of J&K & Ors. AIR 1971 SC
7. Maneka Gandhi v. Union of India, 1978 SCR (2) 621
8. National Human Rights Commission v. State of Arunachal Pradesh & Anr.1996 (1)
UJ 370
9. The Chairman Railway Board & Ors vs Mrs Chandrima Das & Ors. (2000) 2 SCC 465
10. Salomon v. Commr. Of Customs & Excise [1967] 2 Q.B. 116
11. Lord Bridge v. Secy. of State for the Home Deptt. (1991) 1 All ER 720 (HL)
12. S.R. Bommai v. Union of India JT 1994 (2) SC (215)
 13. Keshavananda Bharti V State of Kerela AIR 1973 SC 1461
14. Anuradha Bhasin vs Union Of India (2020) 1 MAD LJ 574
15. Romesh Thapar v. State of Madras AIR 1950 SC 124
16. Ram Manohar Lohia vs State Of Bihar And Ors. (1966) 1 SCR 709
17. Pushkar Mukherjee v. State of West Bengal (1969) 2 SCR 635
18. Arun Ghosh v. State of West Bengal (1970) 3 SCR 288
19. Ramlila Maidan Incident v. Home Secretary, Union of India & Ors. (2012) 5 SCC 1
20. Ramjilal Modi v. State of Uttar Pradesh, AIR 1957 SC 622.
21. Madhu Limaye vs Sub-Divisional Magistrate 1971 AIR 2486
22. Ministry of Information & Broadcasting Government of India v. Cricket Association
of Bengal (1995) 2 SCC 161
23. Shreya Singhal v. Union of India (2015) 5 SCC 1

LEXICONS:
1. Briyan A. Garner, Black’s Law Dictionary (11th ed. 2019).
2. Merriam-Webster’s Law Dictionary
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indica has the jurisdiction to hear and decide upon the
petition made by the petitioner by virtue of the Writ Jurisdiction as stated in Article 32 of The
Constitution of Indica under the Original Jurisdiction of Supreme Court.

Article 32 of The Constitution of Indica reads as hereunder:

“32. Remedies for enforcement of rights conferred by this Part

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

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

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

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

Background:
 Indica is the largest democracy in the world whose constitution declares it as a
Sovereign Socialist Secular Democratic Republic. Through the 42nd Amendment to
Indican Constitution in 1973, the term Secular was added to the preamble as part of
the ‘basic structure’ which cannot be amended to remove any word whatsoever as set
forth in the landmark case of Indica.
 Zakistan is a neighbouring nation of Indica, which is the Shislamik Republic. Indica
being the most populous country can provide certain exclusive rights only to her
citizens. However, the idea of citizenship was alleged to be largely disturbed by the
influx of illegal migrants in the country through the North eastern border of the
country. There are 14.23% Shislamians out of the total population of Indica.
 Nassam is the worst affected state, and it was alleged to have 50% of its population
being illegal migrants. Due to which, the central & state govt. in collaboration
launched the NRC for Nassam, which contained entries of original habitants of the
state, excluding all illegal immigrants. However many citizens who claimed to be
original residents did not find their names in the register, which led to a state of
disruption in Nassam & to tackle the issue, the central govt. came up with CAB,
which was alleged to have some provisions being grossly against secularism, & being
discriminatory against Shislamians.

The sequence of events:

 The controversial provision due to which disruption occur was being added to Section
2 of CAA 1955 by the CAB 2019.
("Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community
from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of
December, 2014 and who has been exempted by the Central Government by or under clause (c) of
sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of
the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated
as illegal migrant for the purposes of this Act;".)

 Both the houses passed the bill, it also received the President’s assent & converted
into a full-fledged Act on 12th October 2019. The constitutional validity of the Act
was
 challenged into various High Court’s & Supreme Court, by the Shislamians, claiming
the bill discriminates against Shislamians & the govt. have a long term agenda of
combining it with PAN NRC. Therefore declaring Shislamians as illegal immigrants
& putting them either in detention camps or sending them to major Shislamik
countries.
 The central govt. denied all the claims & argued that Act is constitutionally valid & in
no way challenges the fundamental rights of any religious community & citizenship
status. The protests soon turned violent & led to mass bloodshed between two
religious groups, which majorly involved students from certain universities &
political group.

The resultant litigation:

 Rahim Baugh witnessed a sit-in protest. However, soon after a few days, a complaint
of road blockage & Public Nuisance started finding their place in media reports. The
ruling party discouraged the protest, highlighting major public inconvenience &
affixing their stand of not standing the Act back. Govt. asked the protestors to stop
these protests but due to continuous denial by protestors invited prompt action by the
govt.. Some of the state govt.s ordered an Internet ban in various cities. Local people,
including organizers of protest, moved to High Court on the ground of violation of
their Fundamental Rights.
 The Supreme Court realizing the gravity, clubbed all the Petitions filed in various
High Courts & transferred it to itself as a single Petition.
 ISSUES RAISED

ISSUE 1.
Whether or not The Citizenship
Amendment Act is Constitutionally Valid?

ISSUE 2.
Whether or not the Protests leading to riots could
be included as valid peaceful protests?

ISSUE 3.
Whether or not the Fundamental Rights of any section
is being violated by the Act and whether
or not the government failed to
fulfil any constitutional directives?

ISSUE 4.
Whether or not the Internet ban has violated
any Fundamental Right to the
Indican Constitution?
 SUMMARY OF ARGUMENTS

WHETHER OR NOT THE CAA IS CONSTITUTIONALLY VALID?

It is submitted that the impugned Act is unconstitutional as it is in contravention to the Article

14, 21, 51 (c) and 253 of the Constitution and destroys the basic structure of the Constitution.
This Act is arbitrary and unreasonable as it hinders the right of life of migrants of other
religion and other Nation States without giving effect to nexus between classification and
object of the Act thereby, it holds no constitutional value and hence void ab initio and liable
to be so declared by this Hon’ble Court.

WHETHER OR NOT THE PROTESTS LEADING TO RIOTS COULD BE

INCLUDED AS VALID PEACEFUL PROTESTS?

The right to protest peacefully is enshrined in the Indican Constitution—Article 19(1)(a)

guarantees the freedom of speech and expression; Article 19(1)(b) assures citizens the right to
assemble peaceably and without arms. Which means it is legal to do peaceful protest.

In AURANGABAD, people wanted to agitate in a peaceful way 'cannot be called traitors,

anti- nationals only because they want to oppose one law', the Aurangabad bench of the
Bombay High Court on a petition challenging denial of police permission to an agitation
against the CAA. This order by the court clearly highlights the fact that protest was peaceful.

WHETHER OR NOT THE FUNDAMENTAL RIGHTS OF ANY SECTION IS BEING

VIOLATED BY THE ACT AND WHETHER OR NOT THE GOVERNMENT
FAILED TO FULFIL ANY CONSTITUTIONAL DIRECTIVES?

The act is violative of art. 14 of constitution as it neither treated equal individuals equally
(have not included Shislam) nor made the reasonable classification. As stated by Hon’ble
Supreme Court in famous judgement of Navtej Singh Johar v. Union of India, the
classification cannot be made on the basis of gender, religion, race or geographical area under
article 14 of constitution. Classification on the basis of religious belief or faith cannot be
considered as
reasonable. This act is in violation of article 51(c) of Constitutional directives and also
inconsistent with art. 253 of constitution.

WHETHER OR NOT THE INTERNET BAN HAS VIOLATED ANY

FUNDAMENTAL RIGHT TO THE INDICAN CONSTITUTION?

The internet is so important that it has been declared a “GLOBAL COMMON”. The internet
is an enabler of service and helps in connecting the whole world, without internet not only
would the economy come to a displeasing halt, personal communication, freedom of free
speech and expressions could also be grossly & unjustly restricted. According to Article 19 of
the Indican Constitution lists out the “Protection of certain rights” of a citizen of the state.
Article 19(1) (a) of the Constitution of Indica guarantees to all its citizens the right to
freedom of speech and expression. The law states that, “all citizens shall have the right to
freedom of speech and expression”, but internet was not included in the constitution at the
time of drafting the constitution. Although the ban could not have come into effect as there
were no violations to Article 19(2), the ban was also invalid as it was not based on actual
misuse & objective material rather it was done on just speculations and fantasies that were
equally logically inconsistent.
 ARGUMENTS ADVANCED

ISSUE 1.

1. WHETHER OR NOT THE CAA IS CONSTITUTIONALLY VALID?

[1.1] UNCONSTITUTIONALITY OF CAA

The CAA is patently unconstitutional. Petitioner submits that the Act violates article 14, 21,
25, 51 (c), 253 & the basic structure of the constitution. Petitioner further submits that this
Act also fails in the reasonable classification test1 & the test of arbitrary.
It is further submitted that catena of cases has been passed by the Apex Court wherein the
court has held that certain fundamental rights enshrined in the constitution of Mayeechin are
available to non-citizens (including refugees)2 & citizens equally. Based on these, it is
submitted that the certain fundamental rights like Article 14 & Article 21 are also guaranteed
to non- citizens.
[1.2] ARTICLE 14
Article 14 guarantees “The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India”.3 Petitioner submits that CAA
violates Article 14 of the Constitution as it excludes Muslim from the Act amounting to
discrimination.

i. This Act made an unreasonable classification

The impugned Act violated the Article 14 as this Act made an arbitrary & unreasonable
classification between the persons who have illegally entered into Indica in two different class
viz. migrants from the three specified countries of six religions as specified in the Act &
migrants from other countries like Srilanka, Myanmar, Bhutan, Tibet & China, which does
not satisfy the twin requirement of reasonable classification as in State of West Bengal v.
Anwar

1
This test requires that classification be based on intelligible differentia and have a reasonable nexus with the
object of the law (State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75; The requirement that the law not be
arbitrary is sometimes seen as part of this test: Shankar Narayanan, ‘Rethinking “Non-Arbitrariness”’ (2017) 4
NLUD Student Law Journal 133).
2
The Constitution of Indica, arts. 14, 20, 21, 21A, 22, 25-28 and 32. State Trading Corporation of India Ltd. v.
Commercial Tax Officer, AIR 1963 SC 1811; Anwar v. State of Jammu & Kashmir (1971) 3 SCC 104; Kubric
Dariusz v. Union of India, (1990) 1 SCC 568; Lousis De Raedt v. Union of India (1991) 3 SCC 554 and
NHRC
v. State of Arunachal Pradesh(1996) 1 SCC 742
3
Indican Constitution. Art. 14.
Ali Sarkar4 the Supreme Court held that in order to pass the ‘reasonable classification’ the
following twin requirement must be fulfilled by the enactment in question:-
a. The classification must be founded on an intelligible differentia which distinguishes
those that are grouped from others left out of the group.
b. The differentia must have a rational relation to the object of classification sought to be
achieved by the Act.

It is submitted on the above basis of classification of the Act that the reasoning given in the
Statement of Object & Reason by the Govt. is religious persecution which does not stand
the test of reasonable classification as the people of other countries like Rohingyas of
Myanmar, Balus, Ahmadiyyas, Srilanka, Tamilians etc. are also persecuted in their State for
the religious purpose which has been ignored by this Act.

ii. The Act is arbitrary in nature

The citizenship is given only for religious persecution & has adopted an arbitrary approach
towards other causes of persecution. The classification is also based on an unreasonable date,
i.e. 31.12.2014, which is arbitrary & is against the Assam accord as well.

So reasoning of religious persecution does not hold good to satisfy the test of reasonable
classification under Article 14 as it was well settled by this Hon’ble Court including interalia
in Navtej Singh Johar v. Union of India (2018)5 that, the classification under Article 14
should not be based on the basis of nationality, religion, gender, etc.

iii. Test of arbitrary on Article 14

It has been held by this Hon’ble Court in the case Sharma Transport v. State of A.P.
(2002)6 that, “The tests of arbitrary action applicable to executive action do not necessarily
apply to the delegated legislation. In order to strike down a delegated legislation as
arbitrary, it has to be established that there is manifest arbitrariness. In order to be
described as arbitrary, it must be shown that it was not reasonable & manifestly arbitrary.
The expression “ arbitrarily” means: in an unreasonable manner, as fixed or done
capriciously or at pleasure, without adequate determining principle, not founded in the
nature of things, non-rational, not done or acting according to reason or judgment,
depending on the will alone..” In the case of Shayara

4
(1952) SCR 284
5
AIR 2018 SC 4321
6
(2002) 2 SCC 188
Bano v. Union of India (2017)7 this Hon’ble Court while reiterating the decision in
International Airport Authority Case Ramana Dayaram Shetty v. International Airport
Authority of India, (1979)8 held that any legislation which is arbitrary to Artice 14 could be
struck down.

[1.3] ARTICLE 21
Article 21 reads as: “No person shall be deprived of his life or personal liberty except
according to a procedure established by law 9.” Petitioner submits that the Act violates Article
21 by creating a separate class of individuals who would be rendered stateless.

The impugned Act is also violative of Article 21 of the Constitution of Indica as it takes away
the meaning right to life & liberty of other migrants who do not belong to that respective six
religion from those three States, thereby infringing their basic right to life. There is a catena
of cases wherein this Hon’ble Court has held that certain fundamental rights are not only
guaranteed to citizens but also to non-citizens. Certain human rights are basic rights which is
available to everyone irrespective of their nationality, religion, sex, colour, etc. & violation of
these rights will violate human rights. In Anwar v. the State of J&K & Ors. (1971)10 it was
held by this Apex Court that, “the rights under Article 20, 21 & 22 are available not only to
“citizens” but also to “persons” which would include “non-citizens.”

i. The Act lacks the principle of just, fair & reasonable

It is trite law that “procedure established by law” within the meaning of Article 21 of the
Constitution necessarily implies “just, fair & reasonable11” procedure & the impugned Act
lacks this basic principle of “just, fair & reasonable” as it does not provide adequate
reasonability for differentiating the people on the basis of religion & nation. It also has failed
to look upon the plight of persons of other countries who are facing religious persecution or
persecution of any other form who wants to seek shelter in other nation-States to safeguard
their life. This Hon’ble Court, in the case of National Human Rights Commission v. State
of Arunachal Pradesh & Anr. (1996)12 has held that, everyone is entitled to life & no person
shall be deprived of the same. Relying on the above two cases it is submitted that the

7
(2017) 9 SCC 1
8
(1979) 2 LLJ 217
9
Indican Constitution. art. 21
10
AIR 1971 SC
11
Maneka Gandhi v. Union of India, 1978 SCR (2) 621
12
1996 (1) UJ 370
Citizenship (Amendment) Act, 2019 of Indica fails to stand on the test of ‘procedure
established by law’ as the due process of law, i.e. the impugned Act is not fair, just &
reasonable as it takes the basic rights from people on the basis on religion & nationality,
which thus, violates the Article 21 of the Constitution.

[1.4] ARTICLE 51(C) & ARTICLE 253

The Apex Court has realized the importance of international law in The Chairman Railway
Board & Ors vs Mrs Chandrima Das & Ors. (2000) 13 the court observed that all the
international agreements need to be encapsulated by its signatories in their domestic
jurisprudence.25. Lord Diplock in Salomon v. Commr. Of Customs & Excise (1996) 14 said
that there is prima facie presumption that Parliament does not act in breach of international
law, including specific treaty obligations. So also, Lord Bridge v. Secy. of State for the
Home Deptt.15 Observed that Parliament should frame legislations in consonance with
international agreements. The conflict of international law will lead to violation of Article 51
(c)16 & Art 25317 of the Constitution. The impugned Art violated Article 2, 3, 7 & 14 of
UDHR & Article 26 of ICCPR thus, violating Art 51(c) & Article 253 of our Constitution.

[1.5] BASIC STRUCTURE OF CONSTITUTION

It is submitted that the clause (2) of the Act failed to provide the reasonable classification
inasmuch it does not provide a cogent explanation for privileging one class from another on
ground of religion for acquiring citizenship is against the basic value & structure of the
Constitution as it was held in the case of S.R. Bommai v. Union of India (1994)18 by Apex
Court, “secularism is the basic feature of the constitution.” Furthermore, it was held in the
case of Keshavananda Bharti V State of Kerela (1973)19 that “the parliament has no power
to amend/ destroy/ annihilate the basic feature of the Constitution”. Thus, referring both the
cases it is submitted that the Citizenship (Amendment) Act, 2019 it destroys the basic
structure of the Constitution. Thus, it is submitted that the impugned Act has violated the
equality doctrine

13
(2000) 2 SCC 465
14
[1967] 2 Q.B. 116
15
(1991) 1 All ER 720 (HL)
16
Art 51(c),Indican Constitution: foster respect for international laws and treaty obligations in the dealings of
organized people with one another
17
Art 253, Indican Constitution: Legislation for giving effect to international agreements.
18
JT 1994 (2) SC (215)
19
AIR 1973 SC 1461
of the Constitution, making it discriminatory, arbitrary violative to the basic structure, making
this Act unconstitutional & needs to be struck down.

ISSUE 2.

2. WHETHER OR NOT THE PROTESTS LEADING TO RIOTS COULD BE

INCLUDED AS VALID PEACEFUL PROTESTS?

[2.1] LEGALITY OF PROTEST

In December 2019, the Indican Govt. passed the Citizenship (Amendment) Act (CAA) that
discriminates on the basis of religion, particularly Islam. Hundreds and thousands of people
took to the streets in protest of the law and many were met with police brutality, arbitrary
detention under repressive or colonial laws and ill-treatment in detention.

People in Indica continue to face threats to their rights to freedom of expression and peaceful
assembly and association. The authorities continue the use of legislations that prohibits the
gathering of more than 4 persons to deter largely peaceful protests. Petitioner submits that the
protest are well under the legal framework and the fundamental rights.

[2.2] PEACEFUL PROTEST AS FUNDAMENTAL RIGHT

In the case of Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors. 20., the
Supreme Court had stated, “Citizens have a fundamental right to assembly and peaceful
protest which cannot be taken away by an arbitrary executive or legislative action.”

It was in Maneka Gandhi vs. Union of India21 that Justice Bhagwati had said, “If
democracy means government of the people by the people, it is obvious that every citizen
must be entitled to participate in the democratic process and in order to enable him to
intelligently exercise his rights of making a choice, free & general discussion of public
matters is absolutely essential.”

20
(2012) 5 SCC 1
21
1978 SCR (2) 621
The right to protest peacefully is enshrined in the Indican Constitution—Article 19(1)(a)
guarantees the freedom of speech and expression; Article 19(1)(b) assures citizens the right to
assemble peaceably and without arms.

[2.3] LEGALITY OF PROTEST

It is critical to remember that all protest are legal only if they are nonviolent and carried out
with appropriate permissions. Fundamental duties that are enshrined in the constitution
require that rule of law is followed and that public property is not destroyed. Facts to prove
that protest was legal and peaceful are given below:

 In Dehradun, the state capital of Uttarakhand, a large number of the city’s Muslims
observed a fast (Roza) on Friday as a mark of protest against the CAA and NRC.
According to a report in the local edition of the Times of Indica, “the unique way of
protest was adopted following a directive from the Shahar Qazi Maulana Mohammad
Ahmed Qasmi. The protesters also released black balloons as a mark of protest and white
balloons as a symbol of peace in the country. “Today’s fast was observed by thousands of
people and it all passed off peacefully. The main objective of the fast was to spread the
message of peace across the country,” Qasmi told TOI.

As per the report, during the Friday namaz in around 90 mosques of the city, people also
prayed for peace. The SP of the city Shweta Choubey told the newspaper that, “all the
protests were carried out very peacefully. We didn’t witness any violence. Heavy security
was deployed near the mosques. Not a single protester violated the law.”

This is not an exhaustive list but an indicative one. There have been peaceful protests in
Telangana, Andhra Pradesh, West Bengal, Kerala, Goa, Uttar Pradesh, Tamil Nadu which
have also not received attention from mainstream media houses. Highlighting them – and
the ones which will take place in the future – will ensure that people are not misled and
form a negative opinion about the Muslim community.

 Peaceful protests in Bihar

There have been massive peaceful demonstrations by Muslims in Kishanganj, Forbesganj,

Araria and Purnia of Seemanchal region of Bihar, but have not received the spotlight. A
report
in NewsClick says that on Monday, thousands of people took to the streets in half a dozen
districts of Bihar: Bhagalpur, Patna, Samastipur, Darbganga, East Champaran and Araria.

Protests have also been reported on Friday in different parts of the state. However, the only
time it was reported widely in the mainstream media when there was news of violence.

In Kota town of Rajasthan, a massive protest was organised by Muslims on Tuesday. Hindi
daily Rajasthan Patrika reported that the protest was five-kilometres long and was peaceful.
Jaipur and other parts of the state have also witnessed peaceful mobilisation of Muslims. In
fact, on Friday, a large number of Muslims, including khadims of the Ajmer dargah, led a
protest march against the CAA and demanded the rollback of the controversial law. As per
the report, slogans such as “long live communal harmony” were raised by the protestors.

 Amnesty International Indica has called on PM Modi and the Uttar Pradesh govt to end
the gross violations of the fundamental right to peaceful assembly in Varanasi and other
parts of Uttar Pradesh
 In Varanasi, peaceful protests organised by students, activists and members from the
general public started from 13 December, when a solidarity march was stopped by the
Station House Officer (SHO) of Jaitpura police station. According to The Print, Abid
Sharif, an activist who participated in the solidarity march said told Amnesty International
Indica, “when we were about to start the solidarity march, the SHO Shashi Bhushan Rai
met us and asked the reason for holding the protest march. When we told him that we are
protesting against CAA and NRC, he started threatening us. He said, “If you have to
protest, do it at home. Does the road belong to your father? I will destroy your family. The
new law will be implemented.
 Between 11 and 23 December, 2019, more than 70 people were arrested for peacefully
protesting against the CAA in Varanasi. Amnesty International Indica also found that the
police indiscriminately lathi-charged peaceful protestors and innocent bystanders. It led to
the death of an 8-year old child who was crushed to death and resulted in over a dozen
injuries
 Interviews with the families of the arrested persons also show that police used violence
during arrests. Muhammad Tufail, whose nephew Mohammad Naseem was arrested by
the police in the middle of the night in Bajardiha said, “The police broke into his room
and took him away. They broke down a door that fell on his sleeping father. When we
asked
 the police for the grounds of arrest, they did not say anything and dragged Naseem away.
The police hit him with lathis on the way to the police station. When we met him in jail,
he told us that he was tortured at the police station as well. We saw him in pain.”

The arrested persons were also harassed and intimidated in jail. Speaking to Amnesty
International Indica, Iqbal, a shopkeeper in Varanasi and an arrested protestor said, “Most
of the arrested persons were kept in custody for over 15 days, despite securing bail.
Amnesty International Indica also documented the excessive delay by the jail authorities
in providing access to counsel to the arrested persons. Speaking to Amnesty International
Indica, Ekta Shekhar, a climate change activist who was also arrested for protesting said,
“Despite peaceful protests, we were arrested. I wanted to request the district magistrate to
give me mercy bail because I had to take care of my 14-month old child. For three days,
we were not allowed to contact our family members and lawyers. We were treated as
rioters and not as peaceful protestors.”

Judgement

 In AURANGABAD, people wanted to agitate in a peaceful way 'cannot be called

traitors, anti-nationals only because they want to oppose one law', the Aurangabad
bench of the Bombay High Court on a petition challenging denial of police
permission to an agitation against the CAA
 We have full right to express our views, says Judge Kamini Lau while hearing bail
plea of Bhim Army chief. You are behaving as if Jama Masjid is Pakistan': Judge
hearing Chandra Shekhar Azad's bail plea slams Delhi Police for action on anti-
CAA protesters

Relying upon above contentions it is submitted that protest was lawful and peaceful but the
action of police were unlawful.
 ISSUE 3.

3. WHETHER OR NOT THE FUNDAMENTAL RIGHTS OF ANY SECTION

IS BEING VIOLATED BY THE ACT AND WHETHER OR NOT THE
GOVERNMENT FAILED TO FULFIL ANY CONSTITUTIONAL
DIRECTIVES?

[3.1] THE CITIZENSHIP (AMENDMENT) ACT OF 2019 IS VIOLATIVE OF

ARTICLE 14 OF THE CONSTITUTION

The petitioners claim that the act is violative of art. 14 of constitution as it neither treated
equal individuals equally (have not included Shislam) nor made the reasonable classification.
As stated by Hon’ble Supreme Court in famous judgement of Navtej Singh Johar v. Union
of India22, the classification cannot be made on the basis of gender, religion, race or
geographical area under article 14 of constitution. Classification on the basis of religious
belief or faith cannot be considered as reasonable.

[3.2] INCONSISTENT WITH THE ARTICLE 51(C) AND ARTICLE 253 OF THE
CONSTITUTION
The petitioners claim that this act is in violation of article 51(c)23 of Constitutional directives
and also inconsistent with art. 25324 of constitution. Lord Diplock in Salomon v. Commr. Of
Customs and Excise25 [1996] said that there is prima facie presumption that Parliament does
not act in breach of international law, including specific treaty obligations. The CAA, 2019
violated the Article 2, 3, 7 and 14 of UDHR and Article 2626 of ICCPR thus, violating Art
51(c) and Article 253 of our Constitution.

[3.3] ARBITRARY IN NATURE

The petitioners claim that the act is arbitrary and is discriminatory in nature. The
classification based on the criterion of religion and personal belief cannot be considered as
reasonable under

22
supra note 5
23
Indican Constitution art 51(c)
24
Indican Constitution art 253
25
supra note 14
26
Indican Constitution art 26
the ambit of ‘reasonable classification under art. 14 of constitution’ and the act do not have
rationale object. This act is inconsistent with fundamental Constitutional Values and
Constitutional Directives.

ISSUE 4.

4. WHETHER OR NOT THE INTERNET BAN HAS VIOLATED

ANY FUNDAMENTAL RIGHT TO THE INDICAN
CONSTITUTION?

The internet is so important that it has been declared a “GLOBAL COMMON”. The internet
is an enabler of service and helps in connecting the whole world, without internet not only
would the economy come to a displeasing halt, personal communication, freedom of free
speech and expressions could also be grossly & unjustly restricted. The Internet bans are not
new and the Govt. have used the internet shutdown to their own profits and according to their
will to ease out their operations; many a times they are right and it is necessary to constitute
an internet ban to contain the ill effects. But, as the famous quote goes, “with power comes
responsibility”, with the govt. having rules to shut the internet down, the power is ought to be
misused someday somewhere, or is used in excessive force or in situations that might not
warrant internet bans.

To contain the effects and stop the spread of protests against the conflicting and controversial
bill introduced as the CAB, 2019; the govt. announced several internet bans and shutdowns
across major hotspots that were known to be leading the pan-Indica protest.

But the internet bans violated the fundamental rights provided by the Indican
Constitution to the public.

[4.1] THE RECOGNITION OF INTERNET AS A MEDIUM TO FUNDAMENTAL

RIGHT
According to Article 19 of the Indican Constitution lists out the “Protection of certain rights”
of a citizen of the state. Article 19(1) (a) of the Constitution of Indica guarantees to all its
citizens the right to freedom of speech and expression. The law states that, “all citizens shall
have the right to freedom of speech and expression”, but internet was not included in the
constitution at the time of drafting the constitution.
An important and essential aspect of law is that it should constantly evolve with the evolving
times and the changing society, and hence, the Supreme Court of Indica in the case of
27
Anuradha Bhasin vs Union Of India (herein after as “Anuradha”) declared the right to
freedom of speech and expression under Article 19(1) (a), and the right to carry on any trade
or business under 19(1) (g), using the medium of internet constitutionally protected. This
meant that now the use of internet in to carry on trade, business, and transactions and to make
speeches or express oneself was protected by the constitution and that these cannot be taken
away by anything except Article 19(2).

[4.2] RESTRICTIONS ACCORDING TO ARTICLE 19(2)

The court in Anuradha28 held that “the freedom of speech and expression through the
medium of internet is an integral part of Article 19(1) (a) and accordingly, any
restriction on the same must be in accordance with Article 19(2) of the Constitution.”

But, since rights protected under articles can be restricted in accordance with Article 19(2) of
the Constitution, so can be internet after it was declared a fundamental right when used for to
carry on trade or to express oneself. Article 19(2) states that rights conferred in sub-clause (1)
can be restricted in interests of “sovereignty and integrity of Indica, the security of the State,
friendly relations with foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.” Hence to say that the internet was
banned or suspended in a certain area, then there must be one of the reasons as stated above.
As stated in Anuradha29, “Articles 19 and 21 of the Constitution require that any action of
the State must demonstrate five essential features: (a) backing of a ‘law’, (b) legitimacy of
purpose, (c) rational connection of the act and object, (d) necessity of the action, and (e)
when the above four are established, then the test of proportionality”. The term “reasonable”
should be emphasized in Article 19(2) of the constitution and hence the restrictions on the
freedom of speech should be reasonable as mandated under Article 19 of the Constitution.
These restrictions need to be tested on the anvil of the test of proportionality.

27
(2020) 1 MAD LJ 574
28
Id
29
Supra note19.
 [4.3] ARTICLE 19(2) WAS NOT BEING VIOLATED WHEN INTERNET BAN WAS
CALLED FOR THE PROTESTS ON CAA
According to Article 19(2), internet can be ‘reasonable” restricted only when one of the
following are violated:-

1. The security of the state: - The security of the state in its whole was not as risk,
there was no external force or any such mass scale internal disturbance that put
the security of the state as risk. As rule in Romesh Thapar v. State of Madras 30,
the security of state does not refer to the ordinary breaches of public order which
do not involve any danger to the State.

2. Friendly relations with foreign states: - The peaceful protests did not threaten
friendly relations, infact, it did not affect any relations at all.

3. Public order: - The govt. needs to be able to distinguish between “law & order”
and “public order”, they are not the same thing and cannot be used
interchangeably. In Dr. Ram Manohar Lohia vs State Of Bihar And Others31
(herein referred to as “Lohia”), Hidayatullah, J. said that any contravention of
law always affected order, but before it could be said to affect ‘public order’, it
must affect the community or the public at large. In the same case the Court also
stressed again that “public order” was of narrower ambit than mere “law and
order”, and would require the State to discharge a high burden of proof, along
with evidence. A similar conclusion was also drawn out in Pushkar Mukherjee
v. State of West Bengal32 where Ramaswami, J., observed that, a line of
demarcation must be drawn between serious and aggravated forms of disorder
which affect the community or injure the public interest and the relatively minor
breaches of peace of a purely local significance which primarily injure specific
individuals and only in a secondary sense public interest. In Arun Ghosh v.
State of West Bengal33, it was stated that an assault by a member of one
community upon a leading individual of another community, though similar in
quality, would

30
AIR 1950 SC 124
31
(1966) 1 SCR 709
32
(1969) 2 SCR 635
33
(1970) 3 SCR 288
 differ in potentiality in the sense that it might cause reverberations which might
affect the even tempo of the life of the community. Hence clearly the peaceful
protests did not break public order by targeting any leading individual of another
community, and thus the invalidity of the ground that the Internet ban was to
preserve public order or as the officials refer to it “law & order”.
Most importantly, it was held that mere criticism of the govt. does not
necessarily disturb public order.34 The protests were based to oppose the
religiously discriminating amendment to the CAA passed by the govt. and hence it
cannot be argued by the defence that “utterances deliberately tending to hurt the
religious feelings of any class has been held to be valid as it is a reasonable
restriction aimed to maintaining the public order.35”

4. Sovereignty and Integrity of Indica: - The protests doesn’t challenge the integrity
and sovereignty of Indica. Also, in Ramlila Maidan Incident v. Home
Secretary, Union of India & Ors. 36, the Supreme Court had stated,
“Citizens have a fundamental right to assembly and peaceful protest which
cannot be taken away by an arbitrary executive or legislative action.” Hence, the
act of protesting doesn’t challenge the supreme power of the govt. and thus
doesn’t pose a threat to the sovereignty of Indica.

5. Contempt of court: - The sequence of events that took place before the case that is
now before the court doesn’t involve any kind of contempt to ant court in the
Indican jurisdiction.

6. Incitement to an offence: - In Lohia37, the court drew a distinction between “active

membership" and “passive membership". Defining “active membership" as the
incitement to imminent violent action, the court held that anything short of that—
including participation in meetings and propagation of ideology—was protected
by the constitutional guarantee of freedom of speech, expression and association.
in There were no incitement to an offence when the members of the Shislamik

34
Raj Bahadur Gond v. State of Hyderabad, AIR 1953 Hyd 277.
35
Ramjilal Modi v. State of Uttar Pradesh, AIR 1957 SC 622.
36
supra note 20
37
supra note 31
 Community were called through the speakers of a local mosque or WhatsApp
messages circulated that called for protests against the religiously discriminating
law.

[4.4] THE BAN WAS BASED ON MERE CONJECTURES, SPECULATIONS &

SIMPLE ISOLATED MEDIA REPORTS OF PUBLIC NUANCES & ROAD
BLOCKAGE; THE ORDER WAS NOT PROHIBITIVE OR PREVENTIVE IN
NATURE; NO ALTERNATIVE METHODS WERE JUSTIFIED BY THE
RESPONDENTS AND THUS IS INVALID.
The main question upon us is whether the govt. was justified in blocking the internet of a
whole area when the miscreant were already out and could be easily be identified and
services selectively stopped rather than announcing mass blackout of the most used resource
today and violating the fundamental rights of every person whether they are included in the
protests or were sitting in homes due to the curfew established by the govt..

The court in Madhu Limaye vs Sub-Divisional Magistrate38 directed that, “Ordinarily the
order would be directed against a person found acting or likely to act in a particular way”
specially emphasising that a general order is justified only when it may not be possible to
distinguish between the subject of protection under these orders and the individuals against
whom these prohibitory orders are required to be passed. But in this case, the general order of
mass blockage of internet is not justified as the miscreants could be easily identified and
prohibitory orders issues that were less prohibitory and more preventive in nature.

The govt. can argue that they don’t have the technology available to selectively block
internet services. But as pointed out in Anuradha39, if such a contention is accepted, then the
govt. is free to put a complete internet blockage anytime and every time they want, which
cannot be accepted in a democratic setup and perpetually not by the court.

Although the ban could not have come into effect as there were no violations to Article 19(2),
the ban was also invalid as it was not based on actual misuse & objective material rather it
was done on just speculations and fantasies that were equally logically inconsistent.

Information available in the public domain say that the orders of internet suspension as said
by spokespersons of the govt. were on the grounds of “possible misuse” of SMS, WhatsApp,

38
1971 AIR 2486
39
supra note 27
YouTube and Facebook to “disturb peace and tranquillity of the city and create further law
and order situation.” This is nothing but abuse of authority and power by the govt.. Orders
of suspensions of the internet should not only be strictly according to the Temporary
Suspension of Telecom Services Rules under the Indican Telegraph Act, it should not also
be enforced on an apprehension of likelihood that there would be danger to a “public
order” situation. It has been firmly stated in the Anuradha Bhasin40 that Section 144,
Cr.P.C. orders should be based on some objective material and not merely on conjectures.
It also held that, “the government has to justify imposition of such prohibition and explain as
to why lesser alternatives would be inadequate.” Talking about the possibility of wide reaching
effects of internet and shutting it to prevent spread of word also leads to restriction on free
speech through internet; and, as held in Secretary, Ministry of Information & Broadcasting
Government of India v. Cricket Association of Bengal41 & Shreya Singhal v. Union of
India42, that, “There is no dispute that freedom of speech and expression includes the right to
disseminate information to as wide a section of the population as is possible. The wider range
of circulation of information or its greater impact cannot restrict the content of the right nor
can it justify its denial.”

As held in Anuradha43, the court emphasised that annoyance must assume sufficiently grave
proportions to bring the matter within interests of public order. The protests were not of grave
proportions; the govt. illogically and irresponsible acted on media reports of complaints of
road blockage and public nuisances in specific areas to shut down internet in large chunks of
areas that were not even reported to have sufficiently grave proportions of threat to public
order.

40
ibid.
41
(1995) 2 SCC 161
42
(2015) 5 SCC 1
43
supra note 27
 PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

AUTHORITIES CITED, AND THE SUBMISSIONS TO BE MADE AT THE TIME OF
HEARING,

IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT MAY BE PLEASED,

1. To declare, the Citizenship amendment Act, 2019 Constitutionally Invalid and

Religiously Discriminatory.

2. To set forth, that this act is violating the Fundamental Rights of one particular
section based on their religion.

3. To uphold, that the actions taken by the respondents in the matter of the suit
were against the constitutional directives, morally incorrect and against the
principles of secularity & equality of rights.

4. To reassure, that the Arbitrary Internet bans & suspensions are a violation of
basic fundamental rights as held by this court in the case of Anuradha Bhasin v.
Union of Indica; and the present instance of Internet suspension as against the
given guidelines.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE
COURT MAY DEEM FIT AND APPROPRIATE IN THE INTERESTS OF justice, equity &
good conscience.