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COUNSEL ON BEHALF OF THE RESPONDENT
TEAM CODE: NIU-
BEFORE THE HON’ BLE HIGH COURT OF FALRES
ORGINAL WRIT JURISDICTION
WRIT OF HABEAS CORPUS
W.P. (CIVIL) NO. _____ / 2022
UNDER ARTICLE 226 OF THE CONSTITUTION OF ARMINGTON
IN THE MATTERS OF
BISMILLAH ALLAM & OTHERS………………………………………. Petitioners Vs. UNION OF ARMINGTON & ANR………………………….….. Respondents UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HON’BLE HIGH COURT OF FALRES MEMEMORANDUM ON BEHALF OF THE RESPONDENT
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS……………………………………………………………4-
INDEX OF AUTHORITIES………………………………………………………………..7-
STATEMENT OF JURISDICTION……………………………………………………….
STATEMENT OF FACTS………………………………………………………………11-
ISSUES RAISED…………………………………………………………………………..
SUMMARY OF ARGUMENTS………………………………………………………15&
ARGUMENTS ADVANCED……………………………………………………………16-
1. WHETHER ARMINGTON CITIZENSHIP (AMENDMENT) ACT, 2019
VIOLATES ARTICLE 14 AND 21 OF THE CONSTITUTION?
1.1 The impugned Act does not violate Article 14 1.2 the impugned Act does not violate Article 21 1.2.1 That the act doesn’t deprive petitioner’s right to life 1.2.2 That the Parliament followed due procedure
2. WHETHER BISMILLAH ALLAM AND HIS FAMILY IS THE RIGHTFUL CITIZEN OF ARMINGTON OR NOT? 2.1 Parliamentary powers as to termination of citizenship 2.1.1 Article Seven: Rights of Citizenship of Certain Migrants to included 2.2 That settlement of disputes about foreigners is a matter of policy, 2.3 Such policy does not violate a statute or the constitution and 2.4The present matter is beyond the scope of judiciary. 3. WHETHER THE CHARGES AGAINST THE GOVERNMENT IS MAINTAINABLE OR NOT? 3.1 Unlike other countries Armington does not have ‘Law of Torts’ 3.2 Protection under Section 76 of Armington Penal Code
LIST OF ABBREVIATION
S.No ABBREVIATION FULL FORM 1.
& AND
2. AIR
ALL INDIA REPORTER
3. Annex. ANNEXURE 4. **Anr. ANOTHER
- Art.**
ARTICLE
**6. Commr. COMMISSIONER
- Corpn.**
CORPORATION
8. CAA
CITIZENSHIP AMENDMENT ACT
CAB
CITIZENSHIP AMENDMENT BILL
**9. Ed. EDITION
Govt.**
GOVERNMENT
11. HC HIGH COURT
Hon’ble
HONORABLE
APC
ARMINGTON PENAL CODE
14. No. NUMBER 15. Viz.
NAMELY
Ors.
OTHERS
17. ¶ PAGE
18. Pvt. Ltd. PRIVATE LIMITED 19. r/w
READ WITH
20. SCC SUPREME COURT CASES
SCR
SUPREME COURT REPORTER
**22. Supp. SUPPLEMENT
- SC SUPREME COURT 24.** Sec
SECTION
25. i.e THAT IS
BOOKS REFERRED
- 1, D.D. Basu, Shorter Constitution of India (Lexis Nexis: 2018 Edition)
- 2, D.D. Basu, Shorter Constitution of India (Lexis Nexis, 2018 Edition)
- D.D. Basu, Commentary on the Constitution of India: Articles 13 and 14(Lexis Nexis: 2014 Edition) 4. 1, H.M Seervai, Constitutional Law of India (4th Edition: 2017)
- 1, H.M Seervai, Constitutional Law of India (4th Edition: 2017)
- M.P. Jain, Indian Constitutional Law (Lexis Nexis: 2018 Edition)
- P.M. Bakshi, Commentary on the Constitution of India (Lexis Nexis: 2014 Edition)
- Sanjay S. Singh & Sathya Narayan, Basic Structure Constitutionalism: Revisiting Kesavananda Bharti (Eastern Book Company: 2011 Edition)
- Article 37, the Constitution of India; Austin Granville, The Indian Constitution: Corner Stone of a Nation, 50 (2 ed., 1967)
- UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, Vol. 189, P. 137 STATUTES REFERRED
- Constitution of India, 1950
- Foreigner's Act, 1946
- Immigrants (Expulsion from Assam Act), 1950
- Indian Citizenship Act, 1955
- Passport (Entry into Roziana) Rules, 1950
- Statute of International Court of Justice
WEBSITES REFERRED
S.No PARTICULARS
1. https://indiankanoon.org/doc/170570619/ 2. www.octopus.com 3. www.lexisnexis.com 4. www.mupratafast.com 5. www.cpwd.gov.in CASES CITED S.No PARTICULARS Pg No. 1. Ram Krishna Dalmia vs Justice S R Tendolkar 16 2. Samantha v. State of Andhra Pradesh 18 3. Maneka Gandhi v. Union of India 19 4. Bhagwati Prasad Dixit v. Rajeev Gandhi 21 5 Nasir Ahmed vs The Chief Commissioner, Delhi AIR 1959 P H 261
6 The State of Bihar v. Kumar Amar Singh (AIR 1955 SC 1614: (1966) 3SCR 706
7. State of Arunachal Pradesh v. Khudiram Chakma 23
including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32”^1 STATEMENT OF FACTS The Armington National Register (herein referred to as ANR) which is mandated by the Armington Citizenship Act, 1955 (as amended in 2003) is a register where the names of all the citizens of Armington has to be mandatorily registered. This is done for the purpose of differentiating the Citizens from the illegal immigrants from neighboring countries. The province of Falres shares its borders with another country named Republic of Jamia. The province of Falres has a unique problem of illegal immigration from its neighboring county of Jambia. The ANR for the province of Falres was created in the year 1951 which was based upon the data from the then conducted census of 1951 but thereafter the authorities failed to maintain the said ANR in the province of Falres. Due to the disappointing and unsatisfactory progress in the maintenance of the said register, the Supreme Court of Armington took suo moto cognizance by directing and monitoring the due process since 2013. A recent updated ANR was published for the state of Falres on August 2019 which contained 3.1 crores names (^1) Indian Const. Art.226.
out of 3.3 crores of population was included in the ANR leaving out 19 lakhs names of people living in the province of Falres. These 19 Lakhs citizens because their names were not mentioned in the ANR faced the danger of losing their citizenship and were thereafter sent to concentration camps set up by the Government of Armington for illegal immigrants and refugees. Meanwhile the present Government of Armington passed the Armingtom Citizenship (Amendment) Bill in the Parliament on December 2019. Under the said amendment bill passed, there were major changes which made a clear mention of 6 primary religions (namely Hindia, Keshabha, Padmabha, Veshabha, Zoarabha, Jehowha) of the country leaving out 1 (Tahibha). Section 2 (1) (b) of the Armington Citizenship (Amendment) Act, 2019 states that – “Provided that any citizen belonging to Hindia, Keshabha, Padmabha, Veshabha, Zoarabha and Jehowha community from Tahibic Republic of Mekimer, Republic of Jambia and Tahibic Republic of Ramingherb who entered into Armington on or before the 31st day of December 2014 and who has been exempted by the Central Government under clause (c) of sub-section (2) of section 3 of the Passport (Entry into Armington) 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”. Further, the Amendment Bill passed also mentions under section 3 that if there is any pendency of proceedings of registering the names of citizens under the ANR on or from the date of commencement of the Amendment Act with respect to illegal migration or citizen, then the citizenship of that particular person shall stand abated on conferment of citizen to him, however, he shall not be disqualified from applying for citizenship under this section on the grounds that the proceeding is pending against him and the authorities shall not reject his application on that ground if he is otherwise found qualified. The Present Government also mandated that all the residents of Falres had to produce documents proving that they or their families lived in the country of Armington before March 24th 1971 due to coming of large number of illegal immigrants by illegally crossing the borders of Armington. Bismillah Alam, grandson of Ekmuddin Alam (brother of the former president of Armington Dara Allam 1975-1977) who also served in the National Armed Forces of Armington for 35 years and is a war veteran, along with four other members of his family (all belonging to the Tahibic community) were arrested on the grounds that their names were not included in the recent updated final list of ANR. They were all sent to the concentration camps set up by the government for the illegal migrants. Bismillah Alam on an interview with a media house stated that they are being purposely sent because they belong to a certain religious
4. WHETHER THE ARMINGTON CITIZENSHIP (AMENDMENT) ACT, 2019
VIOLATE THE BASIC STRUCTURE OF THE CONSTITUTION OF BEING A
SECULAR OR NOT?
SUMMARY OF ARGUMENTS
1. WHETHER ARMINGTON CITIZENSHIP (AMENDMENT) ACT, 2019
VIOLATES ARTICLE 14 AND 21 OF THE CONSTITUTION?
It is most humbly submitted that the Citizenship (Amendment) Act, 2019 is wholly constitutional. The impugned Act does not violate the fundamental rights of the petitioners, namely Article 14, Article 21 and Article 29 and thus stands the test of Article 13. Further, The Parliament is vested with the power to amend laws relating to citizenship under Article 11 of the constitution of Armington, its says that “ Parliament to regulate the right of citizenship by law Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship PART III FUNDAMENTAL RIGHTS General”^2 (^2) Article, 11 of the constitution
2. WHETHER BISMILLAH ALLAM AND HIS FAMILY IS THE RIGHTFUL
CITIZEN OF ARMINGTON OR NOT?
According to Article 11 Constitution of Arminfton, 1950, the Parliament has been given absolute powers (subject to PART III) to make provisions regarding acquisition and termination of citizenship and all other matters relating to citizenship. So, the Parliament has the power to frame rules and restriction as to mode of acquiring citizenship provided it is reasonable and fair. (we have already discussed about the reasonability of CAA) and since Bismillah and his family fail to provide the proper document for verification, they are not the rightful citizen of Armington.
3. WHETHER THE CHARGES AGAINST THE GOVERNMENT IS MAINTAINABLE OR NOT? It is humbly submitted before the Hon'ble High Court that the present petition filed before this bench is not maintainable. The maintainability of a petition under Article 226 of the Constitution of Armington^3 depends on the facts of each case.^4 The question as to when the High Court should entertain the claim depends on the nature of the fundamental right alleged to have been infringed and the remedy claimed.^5 In the present case, the petition is not maintainable because there is no infringement of Fundamental. This is because the act done (confinement) is supported by a procedure given by a law, which was valid at the time when the act was committed. CAA and Action taken by the executive authority by virtue of CAA is not violative of Article 21 , because they are supported by procedure established by law in CAA. (^3) The Constitution of Armington and Armington Citizenship Act are Pari- Materia with the Constitution ofIndia and Indian Citizenship Act, 1955. (^4) Assam Sanmilitia Mahasangh and Ors. v. Union of India and Ors., (2015) 3 SCC 1 ; Tilokchand Motichand v.H.B. Munshi, (1969) 1 SCC 110. (^5) Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110; Rabindranath Bose v. Union of India, (1970) 1 SCC 84.
termination of citizenship and all other matters relating to citizenship PART III FUNDAMENTAL RIGHTS General”^11 It is also contended that there is always an initial presumption of validity of a law 12 and that due importance should be given to the legislative intent while deciding the constitutionality of a provision.^13 1.1 THAT IMPUGNED ACT DOES NOT VIOLATE ARTIVLE 14 The Citizenships Amendment Act doesn’t intend to harm the minorities of our country. Article 14 guarantees equality to all persons[a], including citizens, corporations, and foreigners. Its provisions have come up for discussion in the Supreme Court in a number of cases and the case of Ram Krishna Dalmia vs Justice S R Tendolkar reiterated its meaning and scope as follows. Article 14 permits classification, so long as it is 'reasonable', but forbids class legislation. A classification of groups of people is considered reasonable when: The classification is based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group, and, The differential has a rational relation with the objective of the act.^14 It is humbly submitted that every person is entitled to equality before law and the equal protection of laws^15 , irrespective of whether he is citizen or non-citizen.^16 Laws apply equally to all the persons who are equally circumstanced.^17 However, the courts in the number of judgements have held that a classification among persons is permissible only if it is reasonable.^18 (^11) Article, 11 of the constitution (^12) G.K. Krishnan v. State of Tamil Nadu, (1975) 1 SCC 375 (^13) Gita Hariharan v. Reserve bank of India , AIR 1999 SC 1149 (^14) Shri Ram Krishna Dalmia vs Shri Justice S. R, 1958 AIR 538, 1959 SCR 279 (^15) Faridabad CT. Scan Centre v. D.G. Health Services, (1997) 7 SCC 752 (^16) Natural Resources Allocation, in Re Social Reference No. 1 of 2012, (2012) 10 SCC 1 (^17) Chiranjeet Lal v. UOI, AIR 1951 SC 41 (^18) T.M.A Pai Foundation v. State of Kerala, AIR 2003 SC 355
Moreover, as per the test laid down by this Hon’ble Court under article 14, mere production of inequality is not enough to show that the article 14 has been infringed because every classification produces inequality upto certain extent. Merely because the classification has not been carried out with mathematical precision, is hardly a ground for holding the legislation guilty of Article 14. Also, as long as the extent of over-inclusiveness or under inclusiveness of the classification is marginal, as may be in this case the constitutional vice of infringement of article 14 would not infect the legislation. It’s seen that Article 14 is not violated when there is reasonable classification and over here the 3 counties which are mentioned had declared that they will only follow Islamic law. Due to which people from other religious backgrounds were facing a lot of harassment. We must understand one thing: the refugees from other countries have escaped from their country just because they were humiliated and they have come to us in hope that we would protect them. Due to which Armington took the initiative to protect the minorities of the other country as even they have the Right to life and personal Liberty as stated under Article 21 of our constitution. Moreover, Citizenship (Amendment) Act, 2019 is in consonance with the statutory regime of the act of 1955 and also with the Foreigner act, 1946. CAA does not differentiate on the basis of religion rather the ground for classification is the term “religious persecution”. Therefore, it is humbly submitted that the said act does uphold the test of reasonable classification and nexus with the object of the act, and does not violate the spirit of article
14.^19 1.2 THAT THE IMPUGNED ACT DOES NOT VIOLATE ARTICLE 21 Article 21 lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. This procedure cannot be fanciful and arbitrary, but must answer the test of reasonableness in order to satisfy the requirements of Article 21.^20 (^19) State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 (^20) Maneka Gandhi v. UOI, AIR 1978 SC 597
Moreover, Citizenship is a part of entry number 17 in list I (Union list) under 7th schedule of the constitution and under article 246 (1) read with article of the constitution, the parliament can frame citizenship laws for the country. Hence Citizenship (Amendment) Act, 2019 has been enacted by a competent legislature. It is most humbly submitted that CAA is a benign piece of legislation whose main aim is to provide relaxation, in the nature of an amnesty, to specific communities from the neighbouring countries with a clear cut off date and the parliament is competent taking into consideration the historic background to earmark the religious minorities in the said three countries and is not be bound by the declaration of minority status to any other community or sect by the said three named countries. Nehru Liaquat Ali Samjota in 1950 there was a pact signed between India and Pakistan stating that both the countries would respect and accept the religion which is followed by their minorities in this India is still complying with the pact but Pakistan did not follow the pact and they did harass their minorities of the country and due to which Citizenship Amendment Act was introduced and there were changes made to protect the minorities and keep up with humanity. When we talk about decision based on religion we must not forget after getting freedom from British rule India and Pakistan was divided based on religion where majority Muslims went to Pakistan and Majority Hindus came to India. This Act is not violating any rights of minorities who are the citizens of our country nor it is intended to harm. The counsel would like to state that there is a difference between a refugee and an intruder. There are so many difficulties faced by refugees who come here to seek citizenship they are not getting proper education no employment no proper place to stay no proper health and to curb that this bill was passed so the minorities of other countries could get their Right to life and Liberty with dignity. Looking at the history we could see that even during 1964 - 1963 the refugees from Sri Lanka that is Sri Lankan Tamilians were given the citizenship status in our country with this we can see that as time changes the laws are being amended as need of society in Armington we
do not follow a particular religion we give equal importance to all the religions. There have been no changes made in Section 5 and Section 6, citizenship can be acquired through registration and through neutralisation only the minorities of other countries are given a little privilege. The charges which are made on government stating that they have shown discrimination to the minorities living in our country but there are many other privileges which only for the minorities aren’t those a discrimination towards others? During 1971 the population of Taliban was 9.8% but the current report shows there has been a hike of 14.9% so over here the counsel is trying to tell that there is no law which is made against them it is just for the minorities whose rights being violated in other countries. Over here we must see their intentions which are very clear they are not here to harm our country but they are here to be a party and they are here to get the freedom which was getting violated. With this the council would like to conclude by stating that this Act is not violating Article 14 and Article 21 this is only supporting the minority of other countries to get a citizenship so they can avail rights.
2. WHETHER BISMILLAH ALLAM AND HIS FAMILY IS THE RIGHTFUL CITIZEN OF ARMINGTON OR NOT? According to Article 11 Constitution of Arminfton, 1950, the Parliament has been given absolute powers (subject to PART III) to make provisions regarding acquisition and termination of citizenship and all other matters relating to citizenship. So, the Parliament has the power to frame rules and restriction as to mode of acquiring citizenship provided it is reasonable and fair. (we have already discussed about the reasonability of CAA) 2.1 PARLIAMENTARY POWER (TERMINATION OF CITIZENSHIP): According to Section 9 in the Citizenship Act,1995^27 the following provisions are provided for the termination of Citizenship (^27) Citizenship Act,1995, Sec. 9, Acts of Armington,1995(Armington)
