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Team Code: TM TLL-Ansal University's 1st National Online Moot Court Competition 2020 BEFORE THE HON’BLE SUPREME COURT OF INDICA [UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA] WRIT PETITION (CIVIL) NO. _ / 2019 & OTHER CONNECTED MATTERS Indican Union Shishlamic League & Ors .……….. (PETITIONER)
Union of Indica & Ors.……………………………………(RESPONDENTS) SUBMISSION ON BEHALF OF THE PETITIONERS
Phunstsok Wangyal v. Ministry of External Affairs, W P ( C) No. 35 391 2016
Tenzin Tselha v. Union of India, W P ( C) 79831 2016 14 Karma Gyaltsenneyratsang v Union of India, W.P ( C ) 6074/2014 & C, NO. 14780/
Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 15 Southern Railway Co v Greene, 216 U.S. 400 (1910) 16 Budhan Chaudhary v State of Bihar, AIR 1955 SC 191 : (1955) 1 SCR 1045
Kewal Singh v Lajwanti, 1980 AIR 161, 1980 SCR (1) 854 16 Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 : 1991 Supp (1) SCC 600
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 : 1952 SCR 284
Navtej Singh Johar & Ors v. Union of India, W P (CRIMINAL) NO. 76 OF 2016.
Tej Bahadur Singh v State of Uttar Pradesh, AIR 1954 All 655 17 Maneka Gandhi v Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248
Keshavananda Bharati v State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225
Minerva Mills v. Union of India, AIR 1980 SC 1789 : (1980) 2 SCC 591
S.R Bommai v. Union of India, AIR 1994 SC 1918 (2024) : (1994) 3 SCC 1
Aruna Roy v. Union of India, W P (civil) 98 of 2002 18
Sharma Transport v Government of A.P, (2002) 2 SCC 188 : AIR 2002 SC 322
State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 (para. 308); 19 Indian Young Lawyers Association v. State of Kerala, (2018) SCC Online SC 1690 (para. 189)
Kedarnath Bajoria v State of West Bengal, AIR 1954 SC 660 20 Vishaka v State of Rajasthan, (1997) 6 SCC 241, AIR 1997 SC 3011 21 K. S Puttaswamy v. Union of India, W P (CIVIL) NO 494 OF 2012 22 Government of India v Cricket Association of Bengal, 1995 AIR 1236, 1995 SCC (2) 161
Shri Dinesh Trivedi, MP & Orsv.Union of India, (1977) 14 SCC 306 23 State of Uttar Pradesh v. Raj Narain, 1975 AIR 865, 1975 SCR (3) 333 22 Romesh Thappar v. State of Madras, AIR 1950 SC 124 24, Indian Express v. Union of India, 1986 AIR 515, 1985 SCR (2) 287 24, Union of India v. Association for Democratic Reforms, 2002 (3) SCR 294
S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204, 1989 SCC (2) 574
Om Prakash v. Emperor, AIR 1956 All 241, 1956 CriLJ 452 24 Re-RamlilaMaidan Incident Dt ... vs Home Secretary And Or, SUO MOTU WP (CRL.) NO. 122 OF 2011
Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633 : (1960) 2 SCR 821
Kedar Nath v. State of Bihar, 1962 AIR 955, 1962 SCR Supl. (2) 769 28 Natural Resources Allocations; In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1 (77)
R.K. Garg v. Union of India, (1981) 4 SCC 675 30 E.P.Royappa v. State of Tamil Nadu, 1947 4 SCC 3 32 Francis Coralie Mullin v. The Union Territory of Delhi , 1981 1 SCC 608
Sri Srinivasa Theatre v. Government of Tamil Nadu, AIR 1986 SC 999 32
a) It is contended that the Citizenship Amendment Act (CAA) is constitutionally invalid. A basic sweep of the legal principles and a reasonable interpretation of the Constitution’s language will show that the CAA breaches the fundamental rights, specifically the fundamental right and guarantee of equal treatment as contained in Article 14 of the Constitution of Indica. As rightly pointed out, “the National Register of Citizens and the Citizenship Amendment Act are manifestly conjoined in their objectives”; they are two sides of the same coins, and hence speaking about CAA in isolation, keeping aside the National Register of Citizens would not be the correct approach in the said situation. However, even if one is to look at the CAA in its individuality, it is still plainly unconstitutional. Implementing the CAA is like a brutal slap on the foundations of our Constitution particularly on the word “secularism”, a doctrine that has time and again been the center of attention in Indica. b) When the Constitution of Indica was adopted in the year 1950, an entire chapter was devoted to the conferment of citizenship. While Articles 6 to 10^1 delineate various special forms of citizenship necessitated by the Partition and the ensuing migration of people into Indica, Article 5 makes it clear that the framers believed that citizenship ought to be governed broadly by the principle of jus soli , that is citizenship predicated on residence and birth. Citizenship Act, 1955 also strengthened the principle of jus soli as even in the said act, jus soli was held as the governing factor of citizenship. 2 (^1) Constitution of Indica, Art. 6, Right of citizenship of certain persons who have migrated to India from Zakistan; Constitution of Indica, Art. 7, Right of citizenship of certain migrants to Zakistan; Constitution of Indica, Art. 8, Rights of Citizenship of certain persons of Indican origin residing outside of Indica; Constitution of Indica, Art. 9, Persons voluntarily acquiring citizenship of a foreign state not to be citizens; Constitution of Indica, Art.10, Continuance of the rights of citizenship. (^2) Niraja Gopal Jayal, Faith-based Citizenship, India Form, (Nov. 13, 2019), https://www.theindiaforum.in/article/faith-criterion-citizenship
a) Article 5 states that any person who at the commencement of the Constitution had domicile in Indica and (a) who was born in the territory of Indica; or (b) either of whose parents was born in the territory of Indica; or (c) who has been ordinarily resident in the territory of Indica for not less than five years preceding such commencement, shall be a citizen of Indica. Over time, various alterations were made to the principle and the value of the principle did get diluted. First in the year of 1985 when Section 6A was introduced with a motive to effectuate the Nassam Record. The said section stated that all those who came to Nassam on or after 1stJanuary, 1966 but before 25th^ march 1971 must register themselves under Section 18 for citizenship due to which the country saw immense political instability in the coming years. b) The second case was in the year 2003 when the law deprived all those people who were born post the amendment if either of the parents^3 was an illegal migrant.^4 This signified a shift in Indican citizenship law from jus soli (citizenship by birth) to jus sanguinis (citizenship by descent). None of the above alterations however dared to touch the angle of secularism in the country. This was however changed after the introduction of CAA. Section 2 (1)(b) of the Citizenship Act defines an illegal migrant as any foreigner who has entered into Indica without a valid passport and travel documents or whose valid documents are about to expire during the stay. Such illegal migrants were deprived of the means of acquiring any legal citizenship under the law and if anyone had entered Indica trying to escape from persecution or had fled in search of any monetary opportunity, he/she would have no way of seeking citizenship under the law. The definition of the (^3) Phuntsok Wangyal v Ministry of External Affairs, W.P. (C) NO. 3539/2016: Tenzin Tselha v Union of India, W.P. ( C ) 7983/2016: Karma Gyaltsenneyratsang v Union of India, W.P ( C ) 6074/2014 & C, NO. 14780/ (^4) Citizenship (Amendment), 2003 (Act No. 6 of 2004).
a) Article 14 is the fundamental right in the Constitution of Indica. In the structure of the Constitution, any law made by the Parliament or the State legislature which happens to encroach on the foundations of any of the fundamental rights will be void, this would include any law made by the Parliament under Article 11. The powers of the law makers are restricted by the text of the Constitution and they have to be abided to. b) The basic characteristics of Article 14 which can be understood by reading the bare text of the Constitution are that Article 14 is a fundamental right and is applicable to every person within the territory of Indica. The Constitution talks about equality which means equal concern and respect to every person. However, people are born with different attributes and differ from one another and so the Supreme Court recognized almost right from the outset that the moral precepts of Article 14’s guarantee demanded an Aristotelian reading: that people equally situated are to be treated alike while people unequally situated are to be treated in an unlike manner. The U.S Supreme Court relied on a doctrine of reasonable classification in the case of Southern Railway Co v Greene.^12 While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification,” Justice William R. Day wrote, “must be based upon some real and substantial distinction.” The test has been well defined in the case of Budhan Chaudhary v State of Bihar.^13 The test is said to have two conditions. First, the classification has to be founded on intelligible differentia which goes to say that people who are not in a particular group must be left out and the second that the differentia must have a rational relation to the object that needs to be achieved.^14 The classification needs to be made kept in mind the geography, occupation, or the like. There has to be a nexus between the classification made (^12) Southern Railway Co v Greene, 216 U.S. 400 (1910) (^13) Budhan Chaudhary v State of Bihar, AIR 1955 SC 191 : (1955) 1 SCR 1045 (^14) Kewal Singh v Lajwanti, 1980 AIR 161, 1980 SCR (1) 854
and the object that is to be considered. Article 14 basically requires the state to divide and make categories and classifications to acquire substantive equality.^15 c) The same principle was reiterated in the cases of West Bengal v Anwar Ali Sarkar and Tej Bahadur Singh and Ors v. State of U.P.^16 It is important to note that Article 14 strikes at arbitrariness as emphasized in the Maneka Gandhi v Union of India case.^17 The basic principle of article 14 does not demand that the same laws should apply to all persons. What Article 14 forbids is class legislation. Class legislation is when an improper discrimination is made by giving some benefits to a certain section of the society arbitrarily selected from a large number of persons all of whom are entitled to the privilege granted and if it’s found that there is no reasonable justification for excluding one group and including another as we can see is the matter in the said case. 1.3. BASIC STRUCTURE DOCTRINE a) First propounded in the Indican legal jurisprudence in the great case of Keshvananda Bharti vs. Union of India.^18 The doctrine of ‘basic structure’ essentially provides that certain elements, rights and duties under the Indican Constitution are inherent to it. b) Chandrachud, C.J., in the case of Minerva Mills vs. Union of India^19 stated that ‘the Indican Constitution is founded on the bedrock of the balance between Parts III and IV. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution’. c) In the landmark case of S.R. Bommai vs. Union of India^20 , it was stated that democracy, federalism and SECULARISM are essential features of the Indican Constitution and are part of its basic structure. In the landmark case of Aruna Roy (^15) Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 : 1991 Supp (1) SCC 600;State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 : 1952 SCR 284;Navtej Singh Johar & Ors v. Union of India, W P (CRIMINAL) NO. 76 OF 2016. (^16) Tej Bahadur Singh v State of Uttar Pradesh, AIR 1954 All 655 (^17) Maneka Gandhi v Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 (^18) Keshavananda Bharati v State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225 (^19) AIR 1980 SC 1789 : (1980) 2 SCC 591 (^20) AIR 1994 SC 1918 (2024) : (1994) 3 SCC 1
because it excludes Sri Lanka and Bhutan as the constitution of both these places has a place for Siddhism. If the state wants to offer special protection to persons persecuted from neighboring countries with a state religion, then the omission of Sri Lanka and Bhutan would diminish the nexus between the object and the classification.^24 It also ignores those who want to seek refuge from the Rohingyas from Myanmar. This discrimination is arbitrary which means a discrimination that is unreasonable without any guiding light and principle. 25 c) If, on the other hand, based on the SOA, the State were to argue that its objective is to offer the law’s protection only to migrants from neighbouring countries where Shislam is a state religion, then the classification made is still bad because the law leaves out not only certain communities of Shishlam from these countries, who would also ordinarily qualify as minorities—notably the Ahmadiyyas from Zakistan and the Hazaras from Afghanistan—but also excludes other people persecuted on the basis of religion, including Jews, agnostics and atheists.^26 d) The CAA has been applied only in favour of favor of Sindhu, Sikh, Siddhist, Jain, Parsi and Chrisman immigrants, but not immigrants from other religious communities like the Jews, Shishlamian minorities like Shias or Ahmadiyas, even atheists or agnostics who may have been persecuted, on grounds of religion, in Afghanistan, Zakistan or Bangladesh. Only a few religious communities have been covered while turning a blind eye towards the others which violates the principles of secularism. 27 e) The CAA also distinguishes between those people who have entered Indica before 31 st^ December 2014 and after 31st^ December 2014. This inevitably diminishes the humanitarian angle of CAA. If the aim of the government is to simply limit the influx of migrants and if their aim is to only take a few of them, it completely goes against the SOA provided by the Government. By setting a cutoff date, the state is trying to accelerate the process of citizenship for a few migrants while (^24) Supra 22 (^25) Sharma Transport v Government of A.P, (2002) 2 SCC 188 : AIR 2002 SC 322 (^26) Abhinav Chandrachud, The Wrath of CAAn – on Citizenship, Secularism, and Equality, (Jan. 07, 2020) https://indconlawphil.wordpress.com//?s=%22National+Register+of+Citizens%22&search=Go (^27) State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 (para. 308); Indian Young Lawyers Association v. State of Kerala, (2018) SCC Online SC 1690 (para. 189)
making it look like the suffering of the migrants who entered post 31st^ December 2014 is less exacting. f) The Citizenship Amendment Act also relaxed the residential requirements for religious minorities. Earlier the period of stay in the country prior to acquiring citizenship was 11 years. Now with the Amendment Act, it has been reduced to 5 years. This will again distinguish between different migrants. Only the groups covered by CAA will be allowed the five year exemption rule.^28 g) If we were to even consider that the aim of the CAA is to protect those from countries which were part of Pre Partition Indica, then too the classification is not valid due to the inclusion of Afghanistan and the exclusion of Myanmar which was formerly known as Burma. h) The State has tried to separate religious persecution from any other kind of persecution hence lowering the position of those who have not been persecuted on the basis of their faith. Had Indica been a signatory to the 1951 UN Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, the CAA would fall flat as according to the convention and protocols, the states would have to apply the laws without discrimination as to race, religion or country of origin. i) In the case of Kedar Nath Bajoria v State of West Bengal^29 , Chief Justice Shastri held that Article 14 of the Constitution does not require that the classification brought about by legislation be scientifically perfect. This argument can be used by the state to justify the statute. However, Chief Justice Shastri held that the classification has to be based on an intelligible principle. In the said case there is no intelligible differentia as to why all the other groups were excluded. The SOA states that its object is to protect those who have suffered persecution on grounds of religion. When did one religion take precedence over the other? The exclusion of all the above mentioned religions bears no nexus with the object. The fact that Islam is not the state religion in countries like Sri Lanka and Bhutan, if the argument may so be, does not mean that the citizens of the country enjoy the right to exercise any religion of their choice. The relaxation of the residence (^28) Supra 22 (^29) Kedarnath Bajoria v State of West Bengal, AIR 1954 SC 660
