GNLU-NHRC 2019 Moot Memorial

NHRC-GNLU NATIONAL MOOT COURT COMPETITION, 2019
NHRC-GNLU NATIONAL MOOT COURT COMPETITION, 2019 142R
BEFORE THE HON’BLE SUPREME COURT OF OMBERLANDS
W.P. (C) NO. 23 OF 2019
IN THE MATTER OF
SOCIETY FOR WELFARE OF INDIGENOUS PEOPLE

OF AUROM (SWIPA) ......... PETITIONER
v.
UNION OF OMBERLANDS
&
STATE OF AUROM …… RESPONDENTS
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS
Written submissions on behalf

ofthe Respondents
1
TABLE OF CONTENTS
LIST OF ABBREVIATIONS………………………………………………………. 3
INDEX OF AUTHORITIES……………………………………………………….. 4
STATEMENT OF FACTS…………………………………………………………. 13
Check font sizes
STATEMENT OF JURISDICTION……………………………………………….. 15 of the entire text,
mainly headings.
ISSUES RAISED…................................................................................................... 16
SUMMARY OF ARGUMENTS…………………………………………………… 17
ARGUMENTS ADVANCED……………………………………………………… 19
1. WHETHER THE PUBLIC INTEREST LITIGATION WRIT PETITION FILED BY

THE SOCIETY FOR THE WELFARE OF INDIGENOUS PEOPLE OF AUROMIS
MAINTAINABLE
2. WHETHER SECTION 6A OF THE OMBERLANDS CITIZENSHIP ACT IS ULTRA

VIRES OF THE CONSTITUTION OF OMBERLANDS
3. WHETHER THE ACTION OF REPUBLIC OF OMBERLANDS IN AMENDING THE

OMBERLANDS CITIZENSHIP ACT ON THE BASIS OF AGREEMENT IS VALID
4. WHETHER CONSTITUTIONALITY OF SECTION 3 OF THE OMBERLANDS

CITIZENSHIP ACT CAN BE CHALLENGED INSOFAR AS IT GRANTS BIRTHRIGHT
CITIZENSHIP TO CHILDREN WHERE EVEN ONE OF THE PARENTS IS AN ILLEGAL
IMMIGRANT
5. WHETHERTHE OTHER PROVISIONS OF THE TRIPARTITE AGREEMENT OF

1999 ARE BINDING ON THE REPUBLIC OF OMBERLANDS AND THE STATE OF
AUROM AND THAT ARE THEY LIABLE TO PROVIDE COMPENSATION TO THE AURO
PEOPLE FOR COMMITTING A BREACH THEREOF
PRAYER…………………………………………………………………………………….. 40

ofthe Respondents
2
TABLEOFABBREVIATIONS
AIR All India Records

A.P. Andhra Pradesh
Anr. Another
Art. Article
Auro Aurom
BALCO Bharat Aluminium Company Ltd.
Const. Constitution
CRC Convention on Child Rights
Co. Corporation
DLT Delhi Law Times
DPSP Directive Principles of State Policy
ed. Edition
Etc. Et cetera
IV Four
Hon’ble Honorable
ILR Indian Law Reports

ISA International Surrogacy Agreement
Jan. January
J. Justice
J. Justice
Ltd. Limited
Mad Madras
No. Number
Ors. Others
Pg. Page

ofthe Respondents
3
Para Paragraph
¶ Paragraph.
PIL Public Interest Litigation
Supp Supplementary
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Record
i.e. That is
III Third
U.O. I Union of India
UNCRC United Nations Convention on the Rights of the Child
UNHCR United Nations High Commissioner for Refugees
UDHR Universal Declaration of Human Rights
v. Versus
Vol. Volume
w.r.t With respect to
42. W. P Writ Petition
INDEX OF AUTHORITIES
ARTICLES AND JOURNALS
ARTICLES

ofthe Respondents
4
1. Cody M Poplin, Throwback Thursday: The Indo-Bangladesh Enclaves and the Indian
Constitution, Reprise, LAWFARE (August 11 2019) https://www.lawfareblog.com/
throwback-thursday-indo-bangladesh-enclaves-and-indian-constitution-reprise
https://www.ohchr.org/EN/Issues/Minorities/Pages/internationallaw.aspx
2. Javid Ahmed, Remedy of Compensation under Article 32, LEGAL SERVICE INDIA (July
17 2019) https://www.legalservicesindia.com/article/2570/Remedy-of-Compensation-
under-Article-32.html
3. Minorities under international law, United Nations High Commissioner for Human
Rights (July 25 2019)
4. N. Krishna Kumar, Role of Decisions Law In Developing Concept of Compensatory

Jurisprudence, Legal Service India (August 1 2019) http://
www.legalserviceindia.com/legal/article-586-role-of-decisions-law-in-developing-
concept-of-compensatory-jurisprudence.html
5. Prashanti, Compensatory Jurisprudence In India, LEGAL SERVICE INDIA (August 4

2019) http://www.legalservicesindia.com/article/2035/Compensatory-Jurisprudence-
In-India.html
6. Saurav Kumar, Victim Compensation Scheme: An Aspect of Modern

C r i m i n o l o g y , L E G A L S E RV I C E I N D I A ( A u g u s t 1 1 2 0 1 9 ) h t t p s : / /
www.legalserviceindia.com/legal/article-332-victim-compensation-scheme-an-aspect-
of-modern-criminology.html
7. Vineet Kothari and Shreshtha Gupta, What Is PIL?,MANUPATRA (JULY 17 2019)

https://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-
ee92-41da-aa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence
Journals

ofthe Respondents
5
1. Ashish Yadav, Contractual Liabilty Of State In India: A Comparative Analysis,

Volume 4 INTERNATIONAL JOURNAL OF LEGAL DEVELOPMENTS AND ALLIED ISSUES
72 (2018)
2. Felton Kumar, Introduction: Children: From Rights to Citizenship, Volume 633THE

ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 6 (2011)
3. Government Contracts: The Defense of Sovereign Acts: Contracts. "Sovereign Acts"

as a Defense. United States Government, Volume 8 STANFORD LAW REVIEW 284
(1956)
4. K K Nigam, Due Process Of Law: A Comparative Study Of Procedural Guarantees

Against Deprivation Of Personal Liberty In The United States And India, Volume 4
JOURNAL OF THE INDIAN LAW INSTITUTE 99 (1962)
5. Karamdeep Saini, Relationship between International and Municipal Law: A case

study of India, Volume 3 Issue 2 INTERNATIONAL JOURNAL OF ADVANCED RESEARCH
AND DEVELOPMENT 633 (2018)
6. Megha Purohit, Mayank Purohit, An Analysis Of Non-Refoulement In Indian Legal

Framework, Volume 2 JAMIA LAW JOURNAL 167 (2017)
7. Omar Chaudhary, Turning Back: An Assessment of Non-Refoulement under Indian

Law, Volume 39 ECONOMIC AND POLITICAL WEEKLY 3257 (2004)
8. P.R. Ramdhass, Incorporation of International Law into domestic Legal System: A

special Reference to the Indian State Practice, Volume 4 Issue 2 INTERNATIONAL
JOURNAL OF LAW, EDUCATION, SOCIAL AND SPORTS STUDIES 35 (2017)
9. Peter H. Schuck, Citizenship in Federal Systems, Volume 48 AMERICAN JOURNAL OF

COMPARATIVE LAW 195 (2000)
10. Sonali Mahajan, Contractual Liability of State in India- An Analysis, Volume 2

RESEARCH HUB – INTERNATIONAL MULTIDISCIPLINARY RESEARCH JOURNAL 1(2015)
11. Sunil Kumar Agarwal, Implementation of International Law in India: Role of

Judiciary, D EAN M AXWELL A ND I SLE C OHEN D OCTORAL S EMINAR I N
INTERNATIONAL LAW 1 (2010)
ofthe Respondents
6
BOOKS
1) 1 &2 M.P. JAIN, INDIAN CONSTITUTIONAL LAW: WITH CONSTITUTIONAL DOCUMENTS

(6th Edition, Lexis Nexis Butterworths Wadhwa Nagpur,2010)
2) 1 CHITTY ON CONTRACTS (32nd edition, Thomson Reuters,2015)
3) 1&2 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (AR Lakshmanan, V.R.
Manohar &BhagabatiProsad Banerjee ed.,14th Edition, Lexis Nexis,2009)
4) 1,2&3 SAMARADITYA PAL, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION (Lexis

Nexis, 2014)
5) 2 M MONIR, LAW OF EVIDENCE (Shriniwas Gupta, 17th Edition, Universal Law

Publishing, 2016)
6) 3 ATAL BIHARI VAJPAYEE, FOUR DECADES IN PARLIAMENT (Shipra Publications, 1999)
7) 3 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA(Y V

Chandrachud, SS Subramani, TS Doabia, BP Banerjee, ed. 8th edition, Lexis Nexis,2014)
8) ACHARYA DR. DURGA DAS DASU, COMMENTARY ON THE CONSTITUTION OF INDIA(Y.V
Chandrachud& S.S. Subbramani ed. ,8th Edition, Lexis Nexis Butterworths Wadhwa Nagpur,
2008)
9) B P BANERJEE, WRIT REMEDIES: REMEDIABLE RIGHTS UNDER PUBLIC LAW (Bhaskar

Prosad Banerjee & Sankar Prosad Banerjee, 6th Edition, Lexis Nexis, 2013)
10) CITIZENS’ RIGHTS AND THE RULE OF LAW: PROBLEMS AND PROSPECTS (Venkat Iyer
ed.,2008)
11) D J DE, THE CONSTITUTION OF INDIA (3rd Edition, Asia Law House, 2008)
12) DR. BL WADEHRA, PUBLIC INTEREST LITIGATION (3rd Edition., Universal Law
Publication, 2012).

ofthe Respondents
7
13) DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA(S.S. Subramani, 9th
edition, Lexis Nexis,2014)
14) DURGA DAS BASU, CONSTITUTIONAL LAW OF INDIA (BhagabhatiProsad Banerjee, 8th
Edition, LexisNexis Butterworths Wadhwa Nagpur,2008)
15) DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW(S.R. Bhansali 3rd Edition,
Lexis Nexis Butterworths Wadhwa Nagpur,2008)
16) EARL T. CRAWFORD, THE CONSTRUCTION OF STATUTES (Pakistan Law House,2014)
17) H.K SAHARAY, DUTT ON CONTRACT(11TH Edition, eastern law house, 2013)
18) H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH Edition., Central Law Publication,
1991)
19) H.R. KHANNA, MAKING OF INDIAN CONSTITUTION(2nd Edition, Eastern Book

Company,2009)
20) I-IV CONSTITUENT ASSEMBLY DEBATES (Lok Sabha Secretariat,2009)
21) J. BEATSON, A. BURROWS & J. CARTWRIGHT, ANSON’S LAW OF CONTRACT(29th Edition,

Oxford University Press, 2010)
22) JUSTICE P.S. NARAYANA, LAW OF WRITS (7th Edition, Asia Law House,2013)
23) MAMTA RAO, PUBLIC INTEREST LITIGATION (4th Edition, Eastern Book company, 2015).
24) M ARILYN A CHIRON ,N ATIONALITY A ND S TATELESSNESS (Presses Centrales de

Lausanne,2005)
25) MINORITY RIGHTS: INTERNATIONAL STANDARDS AND GUIDANCE FOR IMPLEMENTATION
(United Nations, 2010)
26) MP JAIN, INDIAN CONSTITUTIONAL LAW (8th Edition., Lexis Nexis,2018.)
27) N S BINDRA, BINDRA’S INTERPRETATION OF STATUTES (M N Rao and AmitaDhanda, 10th

Edition, Lexis Nexis Butterworths,2007)

ofthe Respondents
8
28) NILIMABHADBHADE, POLLOCK AND MULLA: THE INDIAN CONTRACT AND SPECIFIC
RELIEF ACTS (14th Edition, Lexis Nexis, 2014)
29) P. ISHWARA BHAT, FUNDAMENTAL RIGHTS: A STUDY OF THEIR INTERREALTIONSHIPS

(Eastern Law House, 2004)
30) P.K. MAJUMDAR & R.P. KATARIA, COMMENTARY ON THE CONSTITUTION OF INDIA
(10TH Edition, Orient Publishing Company, 2009)
31) P.M BAKSHI, PUBLIC INTEREST LITIGATION (C. Kubsad, 3rd Edition, Ashoka Law House,
2012)
32) PM MUKHARJI, THE NEW JURISPRUDENCE: THE GRAMMAR OF MODERN LAW (N. L
Mitra, 2nd Edition, Eastern Law House,2016)
33) S.P. GUPTA, INTERNATIONAL LAW AND HUMAN RIGHTS (1st Edition, Allahabad Law
Agency, 2009)
34) SP SATHE, ADMINISTRATIVE LAW (7th Edition,Lexis Nexis Butterworths Wadhwa, 2004)
35) SURESH MANE, INDIAN CONSTITUTIONAL LAW: DYNAMICS AND CHALLENGES (2nd
Edition, Aarti & Co., 2012)
36) THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION (Sujith Choudhry, Madhav
Khosla & Pratap Bhanu Mehta, Oxford University Press,2016)
37) THE USE OF FOREIGN PRECEDENTS BY CONSTITUTIONAL JUDGES (Tania Groppi& Marie-
Claire Ponthoreau ,Hart Publishing,2013)
38) V. D. MAHAJAN, JURISPRUDENCE & LEGAL THEORY (5th Edition, Eastern Book Company,
2012)
39) VIDEH UPADHYAY, PUBLIC INTEREST LITIGATION IN INDIA (Lexis Nexis Butterworths,
2007).

ofthe Respondents
9
Case Laws
1. Ahmedabad St. Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717 (India) .. 9
2. All Saints High School v. State of A.P.(1980) 2 SCC 478 (India) ……………………... 16
3. Ameeroonisa Begum v. Mehboob Begum, AIR 1953 SC 91 (India) …………………….. 4
4. Andhra State Financial Corporation V Gar Re : Rolling Mills AIR 1994 SC 2151 (India)
……………………………………………………………………………………………. 2
5. Ankul Chandra Pradhan v. Union of India, (1997) 6 SCC 1 (India) ……………………. 4
6. Ashok Kumar Pandey v. State of West Bengal, AIR 2004 SC 1923 (India) …………...... 1
7. Ashoka Smokeless Coal India (P.) Ltd v. Union of India, (2007) 2 SCC 640 (India) ….. 4
8. Ashutosh Gupta v. State of Rajasthan (2002) 4 SCC 34 (India) ……………………...…. 6

9. Babulal Ahmtalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877 (India) ... 4
10. BALCO Employees’ Union (Regd.) v. Union of India(2002) 3 SCC 333 (India) ……...... 1
11. Bhuban v. State of A.P. AIR 1974 SC 2092 (India) ………………………………...…… 6

12. Bishandayal And Sons v. State Of Orissa 2001 AIR SC 544…...……………...………. 18
13. Budhan Chaudhary v. State of Bihar AIR 1955 SC 191 (India) ……………...…………. 5
14. ChampakamDorairajan v. State of Madras, AIR 1951 Mad. 120 (India) ...……………. 5
15. Chiranjit Lal Chwodhury v. Union of India, AIR 1951 SC 41 (India) ………………….. 4
16. Conolly v. Union Sewer Pipe Company 184 U.S. 540 (1901) (United States) ….…..….. 6
17. Dilcia Yean and Violeta Bosico v. Dominican Republic (IACtHR, 23 Nov. 2006 ) …... 14
18. Dongh Liam Kham v. Union of India (2016) DLT 226 (India) ………………………... 10
19. Dr. B Singh v. Union of India 2004 (3) SCC 363 (India) ......…………………………… 2
20. Durga Dutt and Ors. v. State of Himachal Pradesh and Ors. Application No.238(THC)/
2013 ……………………………………………………………………. 8
21. Francis Coralie Mullin V. Administrator, Union Territory Of Delhi And Others (1981) 2
SCR 516 (India) …………………………………………………………...…………….. 7
22. Gopi Chand v. Delhi Administration, AIR 1959 SC 609 (India) …………...…………… 4
23. H.P. Gupta v. Union of India, (2002) 10 SCC 658 (India) ……………………………… 4
ofthe Respondents
10
24. Heochst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45. (India) …………….11
25. Indira Sawhney v. Union of IndiaAIR 1993 SC 477 (India) ………………..………….. 4
26. Jagadish Pandey v. Chancellor, Bihar University, AIR 1968 SC 353 (India) ...………... 5
27. Jolly George Varghese and Anr. Vs Bank of Cochin (1980) 2 SCC 360 (India) ...…..... 8,9
28. K.R. Srinivas v. R.M. Premchand, (1994) 6 SCC 620 (India) ………..………………… 1
29. Kasturilal v. State of UP AIR 1965 SC 1039 …………………………...……………… 19

30. Kathi Raning Rawat v. State of Saurashtra AIR 1964 SC 179 (India) …………...……... 6
31. Keshavananda Bharti v State of Kerala, AIR 1973 SC 1461 (India) …...…………...….. 8
32. Khudiram Chakma v State of Arunachal Pradesh 1994 Supp. (1) SCC 615 ……………18
33. KP Chowdhry v. State of Madhya Pradesh AIR 1967 SC 203 ………………………… 18
34. Lalji Khimji v. State of Gujarat (1993) Supp (3) SCC 567 …………………………….. 18
35. Laxmi Raj Shetty v. State of Tamil Nadu (1988) 3 SCC 319 (India) …..……..…………. 3
36. Louis De Raedt v. Union of India (1991) 3 SCC 554. (India) ………...………………… 7
37. M Nagraj v. Union of India, (2006) 8 SCC 212, 277 (India) …………...……………….. 4
38. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India) …………...…………… 6,7
39. Mulamchand v. State of Madhya Pradesh AIR 1968 SC 1218 ………………………… 16
40. Narmada BachaoAndolan v. Union of India (2000) 10 SCC 644 (India) …..………….. 1
41. National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742
(India) ………………………………………………………………………………… 7,
10
42. National South Indian v. Union Government of India 2016 SCC ONLINE MAD 6901
(India) ……………………………………………………………………………………. 3
43. Natural Resources Allocations, Re special Reference Number 1 of 2012, (2012) 10 SCC 1
(India) ……………………………………………………………………………………. 4
44. P. and O. Navigation Company v. Secretary of State for India (1868-69) 5 Bom. H.C.R.
App. A. 1 ...………………………………………………………...…………………… 18
45. Quamarul Islam v. S.K Kants 1994 Supp (3) SCC 5 (India) …….…………...…………. 3
46. Rabindranath Bose v. Union of India (1970) 1 SCC 84 (India) …………...……………. 1

ofthe Respondents
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47. Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1996) 1
SCC 642 (India) ……………………………………………………………………..…... 4
48. Samant N. Balkrishna v. George Fernandez (1969) 3 SCC 238 (India) …..……………. 3
49. Samatha v. State of A.P. AIR 1997 SC 3297 (India) ……………………...…………….. 8

50. Seth BikhrajJaipuria v Union of India AIR 1962 SC 113..…………..……………….. 18
51. Seth BikrajJaipuria v. Union of India AIR 1962 SC 113 ……………………………... 19
52. Sohan Lal (Dead) v Union of India (1991) 1 SCC 438 ………………………………… 19
53. State of Bihar v Karam Chand Thapar & Brothers Ltd AIR 1962 SC 110 (2) ……..…. 18
54. State of Bihar v. Majeed AIR 1954 SC 786 …………………………………..………... 17
55. State of Bombay v. F N Balsara, AIR 1951 SC 318 (India) ……………………...……... 4
56. State of Jammu and Kashmir v. TN Khosa, AIR 1974 SC 1 (India) ……………………. 5
57. State of Mahrashtra v Prabhu 1994 SCC (2) 481 (India) ………………………………. 2
58. State of Rajasthan v. Bootamal Sachdeva, AIR 1989 SC 1811 ………………………... 17

59. State of Rajasthan v. Vidyawati1962 AIR 933 ……………………………………..…. 18
60. State of Uttar Pradesh v Murari Lal and Brothers Ltd (1917) 2 SCC 449 ……………. 19
61. State of Uttranchal v. Balwant Singh Chaufal AIR 2010 SC 2550 (India) ……...……… 2
62. Subramanian Swamy V. Director, Central Bureau of Investigation And Another, 2014 AIR
SC 2140 (India) ………...…………………………………………………………... 6
63. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 (India) ……………………... 6, 7
64. T Devadasan v. Union of India, A.I.R. 1964 S.C. 179 (India) ………………………….. 5
65. The Bihar Eastern Gangetic Fisherman Co-operative Society Ltd v Sipani Singh (1977) 4
SCC 145 ………………………………………………………………………………... 19
66. Union of India v. AL Ralia Ram AIR 1963 SC 1685…………………………………… 19
67. Union of India v. MV Valliappan, (1999) 6 SCC 259 (India) …………………………… 6
68. Union of India v. Naveen Jindal, AIR 2004 SC 1559 (India) …………………………. 13
69. Union of India v. Steel Stock Holders Syndicate AIR 1976 SC 879 ……………………17
70. Vishaka v. State of Rajasthan AIR 1997 SC 3011(India) …………………………… 8, 13
71. West Bengal v BK Mondal & SonsAIR 1962 SC 779..………………………………... 18

ofthe Respondents
12
International Conventions
UDHR
ICCPR
ICESC
Legal Databases
1) www.scconline.com
2) www.lexisnexis.com
3) www.manupatra.com
4) www.IndianKanoon.com
5) www.heinonline.com
6) www.jstor.com
7) www.refworld.org
Lexicon
1) Black’s Law Dictionary (9th ed. 2009).

ofthe Respondents
13
STATEMENT OF FACTS
I. BACKGROUND OF FACTS
State of Aurom is a part of Republic of Omberlands. The state is rich in natural resources and has
one of the largest rivers Nihel, flowing through it. The State of Aurom shares its western border
with People’s Republic of Mumbaria. The Auro people have language and customs which has
made them culturally distinguishable and have managed to preserve their culture throughout
various invasions and Colonial rules.
II. IMMIGRATION
Prior to 1991 Mumbaria was a colony of the United Provinces of Balian. Due to the reportedly
committed human rights violation by the Balian armed forces hundreds of thousands of
Mumbarians fled across the border into Aurom. Further the Prime Minister of Omberlands issued
a Press Statement wherein he condemned the act of oppression and then stated that aid shall be
provided to the refugees who were entering Aurom due to persecution by the Balian Forces. The
Prime Minister further implored the International Community to extend their support in the spirit
of humanity.
Millions of Mumbarians entered the state of Aurom in fear of persecution and were housed in
refugee camps set up by Government of Omberlands. When local population expressed their
concerns about the Immigrants the Government gave them a verbal assurance to resolve the
situation and parallely continued to encourage other nations to extend support to Mumbaria to
prevent massive humanitarian crises and enable the Mumbarians to return home.

ofthe Respondents
14
III. POST INDEPENDENCE OF MUMBARIA
Mumbaria became an independent nation on 25th January 1991. The Mumbarians continued to
migrate to the State of Aurom. The local administration in Aurom was having a tough time
distinguishing between Mumbarians and the Citizens of Omberlands as both had similar features
and languages. The Government of Omberlands had repeated dialogues with the Government of
Republic of Mumbaria after which the Mumbarian Government agreed to take back those
Mumbarians living in Omberlands given that they had valid proof to show that they are
Mumbarian Citizens.
IV. PROTESTS IN THE STATE OF AURO
In December 1998 a massive protest led by Auro Youth United led to formation of Tripartite
Agreement on 15th May 1999. In order to resolve this situation the Prime Minister of
Omberlands entered into a Tripartite Agreement with the Government of Aurom and Auro Youth
United. To resolve the grave situation of the Mumbarian Immigrants and not cause violation to
the rights of Auro people Section 6A of Omberlands Citizenship Act was enacted. This
amendment included a definitive baseline which was 25th January 1991 and it was only with
respect to persons of Mumbarian Origin entering the State of Aurom from the territory of
Mumbaria.
V. PIL BY SOCIETY FOR THE WELFARE OF INDIGENOUS PEOPLE OF AUROM
In February 2019 a National Magazine, Ombers published a report called “two decades since the
Auro movement: a Review”. The report included various claims stating that illegal immigration
has continued till date and that the Government had failed to abide by the Tripartite Agreement.
ofthe Respondents
15
The Government has been taking steps to ensure the welfare of the Auro people and has also
attempted to secure the border despite of difficulties posed by the riverine boundary.
In April 2019 SWIPA has approached this Hon’ble Court by Filing a Public Interest Litigation
Writ Petition under Article 32 of the constitution of Omberlands. The Supreme Court of
Omberlands has issued a notice to the Republic of Omberlands and the State of Aurom and
placed the matter for adjudication before the five-judge Constitution bench in accordance with
Article 145(3) of the Constitution of Omberlands.

ofthe Respondents
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STATEMENT OF JURISDICTION
IT IS HUMBLY SUBMITTED THAT
In the Mater Concerning Society for the Welfare of Indigenous People of Aurom (SWIPA) and
Union of Omberlands and State of Auro, the petitioners SWIPA have approached this
Honourable Court under Art. 32 of the Constitution of Omberlands.
THE RESPONDENTS SUBMIT TO THE SAME.

ofthe Respondents
17
ISSUES RAISED

MAINTAINABLE

VIRES OF THE CONSTITUTION OF OMBERLANDS


CITIZENSHIP ACT CAN BE CHALLENGED INSOFAR AS IT GRANTS
BIRTHRIGHT CITIZENSHIP TO CHILDREN WHERE EVEN ONE OF THE
PARENTS IS AN ILLEGAL IMMIGRANT

AUROM AND THAT ARE THEY LIABLE TO PROVIDE COMPENSATION TO THE
AURO PEOPLE FOR COMMITTING A BREACH THEREOF

ofthe Respondents
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SUMMARY OF ARGUMENTS

MAINTAINABLE?
It is contended that the PIL Writ Petition filed by SWIPA is not maintainable on the
grounds that [A] There has been no Violation of Fundamental Rights. [B] The claims in
the PIL are based on a magazine report which is not a credible document.

VIRES OF THE CONSTITUTION OF OMBERLANDS?
The Respondents contend that Section 6A of the Omberlands Citizenship Act is ultra
vires the Constitution of Omberlands on the following grounds [A] Section 6A is not in
violation of right to equality under Article 14. [B] Section 6A of the Omberlands
Citizenship Act is not violative of Article 21. [C] Article 29(1) is not violated by Section
6A. [D] Section 6A of the Omberlands Citizenship Act is in accordance with the principle
of non-refoulement.


ofthe Respondents
19
It is humbly submitted by the Respondents that the Amendment was not solely based on
the agreement and that the Amendment is valid. The amendment was made through the
introduction of a bill. The respective amendment upholds the international principles

CITIZENSHIP ACT CAN BE CHALLENGED INSOFAR AS IT GRANTS
BIRTHRIGHT CITIZENSHIP TO CHILDREN WHERE EVEN ONE OF THE
PARENTS IS AN ILLEGAL IMMIGRANT?
The Respondents humbly submit their contention that the Constitutionality of Section 3 of
the Omberlands Citizenship Act cannot be challenged insofar as it grants birthright
citizenship to children where even one of the parents is an illegal immigrant on the ground
that Section 3 of the Omberlands Citizenship Act does not violate any Fundamental Rights,
is at par with International Conventions and the Parliament is empowered by Article 11 of
the Constitution of Omberlands to enact laws regarding citizenship.

AURO PEOPLE FOR COMMITTING A BREACH THEREOF?
It is humbly submitted 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. But however, the Government has
acted to ensure welfare of the Auro people within the ambit of its Sovereign Function and
this cannot be held to bind them to the agreement.

ofthe Respondents
20

THE SOCIETY FOR THE WELFARE OF INDIGENOUS PEOPLE OF AUROM
(HEREINAFTER REFERRED AS “SWIPA”) IS MAINTAINABLE?
[A] THERE HAS BEEN NO VIOLATION OF FUNDAMENTAL RIGHT
(¶.1) Although the ambit of the power conferred on the Supreme Court is wide under Article 32,
the petition filed by SWIPA is not maintainable as there has been no violation of Fundamental
right. It is most respectfully submitted that a PIL writ petition can be filed in the Supreme Court
under Article 32 only if a question concerning enforcement of a Fundamental Right is involved.1
In BALCO Employees’ Union (Regd.) v. Union of India2 the Court held that the only ground on
which a person can maintain a PIL is where there has been an element of violation of Article 21
on human rights. Drawing Inference from this case, it can be said that present petition is not
maintainable as there has been no violation of Fundamental Rights. It has been held that if a
person who comes to the Court with a PIL with vested interests, improper motion or actuated by
a desire to win notoriety or cheap popularity are not entitled to file PIL.3
(¶.2) It is humbly submitted that delay also affects the locus standi of the petitioner in filing the
PIL.4 The court may refuse to take the cognizance of a Public Interest Litigation if there is undue
delay on the part of the petitioner to file the same. 5 It is further submitted that, in the case of
Rabindranath Bose v. Union of India6 it was observed that no relief can be given to petitioners
who, without any reasonable explanation, approach Supreme Court under Article 32 of the
Constitution after inordinate delay. The highest court of the land has been given original
1 MP JAIN 8TH EDN PAGE MP JAIN, INDIAN CONSTITUTIONAL LAW 1429 (8th Edition., Lexis Nexis,2018.)
2 (2002) 3 SCC 333 (India)
3Ashok Kumar Pandey v. State of West Bengal, AIR 2004 SC 1923 (India)
4K.R. Srinivas v. R.M. Premchand, (1994) 6 SCC 620 (India)
5Narmada BachaoAndolan v. Union of India (2000) 10 SCC 644 (India)
6 (1970) 1 SCC 84 (India)

ofthe Respondents
21
jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the
intention that Supreme Court would go into stale demands after a lapse of years. Though Article
32 is itself a guaranteed right, it does not follow from this that it was the intention of the
Constitution-makers that Supreme Court should discard all principles and grant relief in petitions
filed after inordinate delay.
(¶.3) It is humbly submitted that the Section 6A of the Citizenship Act was amended on May
23rd, 1999 and the PIL has been filed in April 2019. It is most essential to note that there has been
an undue delay of 20 years in fling this PIL and therefore the same is not maintainable.
In order to preserve the purity and sanctity of PIL the Supreme Court in the year 2010 issued
following directions to be followed before entering entertaining a PIL7.
The courts must encourage genuine and bona fide PIL and effectively discourage and curb the
PIL filed for extraneous considerations
The courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
The court should be prima facie satisfied regarding the correctness of the contents of the petition
before entertaining a PIL.
The court should be fully satisfied that the substantial interest is involved before entertaining the
petition.
(¶.4) It is most humbly submitted that, in a Public Interest Litigation the petitioner should not be
inspired by malice or a design to malign others or be actuated by selfish or personal motives or
by political or oblique considerations. It is further submitted that in the present case, SWIPA is
an unregistered association, and that the PIL filed does not have a bona fide intention or
substantial interest. In conclusion it is submitted that, as violation of Fundamental Right is sine
qua non of aPublic Interest Litigation and this Petition is not maintainable as there has been no
violation of Fundamental rights.
7State of Uttranchal v. Balwant Singh Chaufal AIR 2010 SC 2550 (India)

ofthe Respondents
22
[B] THE PIL IS BASED ON A MAGAZINE REPORT WHICH IS NOT CREDIBLE
(¶.5) The Writ Petition filed has been filed based solely on a report in a magazine called
‘Ombers’ wherein numerous claims have been made with respect to the tripartite agreement of
1999. It is pertinent to note that none of these claims have a bonafide source. The question of
credibility of such source was questioned in the case of Dr. B Singh v. Union of India8, wherein
the Supreme Court observed that the petitioners had referred and relied only on the
representation and the information of some paper cuttings of News Items. The Supreme Court
denying the credibility held that-
“it shall be too much to attribute authenticity or credibility to any information or fact merely
because, it found publication in a newspaper or journal or magazine or any other form of
communication, as though it is gospel truth. Hence, it shall need no reiteration that
newspaper reports per se do not constitute legally acceptable evidence”.
(¶.6) It is further submitted that Supreme Court has ascertained that the news reports are ‘best a
second-hand evidence’, where reporters collect information and pass it on to the editor who edits
the news item and then publish it. In this process truth might get perverted or garbled. Such news
items cannot be said to prove themselves although they may be taken into account with other
evidence if the other evidence is forcible9. It is pertinent to note that in the instant case there is no
other evidence or document to second the magazine report.
(¶.7) The fact that ‘writs such as Mandamus cannot be issued on mere news item’ has been
affirmed by the Indian judiciary in the case of National South Indian v. Union Government of
India.10 Adding to this, Supreme Court in the case of Laxmi Raj Shetty v. State of Tamil Nadu 11 as
8 2004 (3) SCC 363 (India)
9Samant N. Balkrishna v. George Fernandez (1969) 3 SCC 238 (India)
10 (2016) SCC ONLINE MAD 6901 (India)
11 (1988) 3 SCC 319 (India)

ofthe Respondents
23
well as Quamarul Islam v. S.K Kants12 took notice that news report is only hearsay evidence, and
also that a newspaper is not one of the documents that could be referred to prove an allegation of
fact. It is most humbly submitted that the petition under article 32 is not maintainable since there
has been no violation of fundamental rights, there has been an undue delay in filing the PIL and
the allegations made in this PIL are solely based on an unverified magazine report which has no
credibility and hence this petition is not maintainable.
[B] SOVEREIGNTY
The counsel humbly submits that the sovereign act committed under the Tripartite agreement by
the Union under the sovereign function cannot be questioned for breach of the act. In the case of
P. and O. Navigation Company v. Secretary of State for India13, the question of the liability of
state was discussed where the Supreme Court affirmed that the secretary for the state i.e. the state
shall only be liable for the acts of non sovereign nature, where describing the difference between
the sovereign and non sovereign act, Peacock C.J stated that ‘There is a great and clear
distinction between acts done in exercise of what are termed sovereign powers, and acts done in
the conduct of undertakings which might be carried on by private individuals without having
such powers delegated to them. Further in the cases of State of Rajasthan v. Vidyawati14 it was
held that the immunity of state action can only be claimed if the act in question was done in the
course of the exercise of sovereign action. Further the case of Kasturilal v. State of UP15, the
Court unanimously held that the government cannot be held liable in case the act involved was a
sovereign function.
12 1994 Supp (3) SCC 5 (India)
13 (1868-69) 5 Bom. H.C.R. App. A. 1,
14State of Rajasthan v. Vidyawati 1962 AIR 933
15AIR 1965 SC 1039

ofthe Respondents
24

VIRES OF THE CONSTITUTION OF OMBERLANDS?
[A] SECTION 6A IS NOT IN VIOLATION OF ARTICLE 14
(¶.1) Article 14 of the Constitution of India reads “The state shall not deny to any person equality
before the law or the equal protection of laws within the territory of India.”16 It has been held by
the apex Court that Equal treatment of unequal’s is not liable to be struck down as discriminatory
unless there is a simultaneous absence of a rational relation to the object intended to be achieved
by law.17It is humbly submitted that in the instant case, Section 6A was added to put to rest the
protests in Auro and the baseline i.e., 25th January 1991, was introduced with the intention of
detecting and deporting any person of Mubarian origin who entered into the State of Auro after
the said date.
(¶.2) In Indira Sawhney v. Union of India18 it was held that “Equality is one of the magnificent
corner-stones of Indian Democracy”. The underlying object of Article 14 is to secure to all
persons, citizens or non-citizens, the equality of status and opportunity referred to in the
Preamble to our Constitution.19 It is most respectfully submitted that the principle does not take
away from the state the power of classifying persons for legitimate purposes.20 The legislature is
competent to exercise its discretion and make classification.21 Differential treatment does not per
se constitute violation of Article 14.22Any inequality in order to be unconstitutional must be
16INDIA CONST. art. 14
17Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1996) 1 SCC 642 (India)
18 AIR 1993 SC 477 (India)
19Natural Resources Allocations, Re special Reference Number 1 of 2012, (2012) 10 SCC 1 (India)
20 infra 25; Ameeroonisa Begum v. Mehboob Begum, AIR 1953 SC 91 (India); Babulal Ahmtalal Mehta v. Collector
of Customs, Calcutta, AIR 1957 SC 877 (India) ;Gopi Chand v. Delhi Administration, AIR 1959 SC 609 (India);
H.P. Gupta v. Union of India, (2002) 10 SCC 658 (India)
21Ankul Chandra Pradhan v. Union of India, (1997) 6 SCC 1 (India)
221 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 813 (AR Lakshmanan, V.R. Manohar &BhagabatiProsad
Banerjee ed.,14th Edition, Lexis Nexis,2009)
ofthe Respondents
25
actually and palpably unreasonable and arbitrary.23It becomes significant to note that Section 6A
was introduced in order to provide rights to the people who had fled Mumbaria due to fear of
persecution. Omberlands was under the obligation to provide a safe place to these people.
(¶.3) It is humbly submitted that Article 14 denies equal protection only when there is no
reasonable basis for the differentiation.24 If a law deals equally with members of a well-defined
class, it is not obnoxious and is not open to the charge of denial of equal protection on the ground
that it has no application to other persons.25 The concept of equality allows differential treatment
but it prevents distinctions that are not properly justified.26 It is most humbly submitted that
justification needs each case to be decided on a case-to-case basis.27 It is pertinent to note that
this amendment is properly justified even though it gives the citizenship rights only to the people
who have entered the territory of Auro from Mumbaria as the same was done keeping in mind
the then prevailing circumstances.
(¶.4) The interpretation of Article 14 is based on the theory of classification. There is no absolute
equality among human beings. Inequality is a fundamental fact in actual life. To reconcile the
Constitutional equality with the facts of life, some distinction, classification, gradation, or
differentiation is inevitable.28
(¶.5) It is most respectfully submitted that in the instant case legislation by the amendment and
inclusion of 6A creates permissible classification as discussed in the case of Budhan Chaudhary
23Chiranjit Lal Chwodhury v. Union of India, AIR 1951 SC 41, p.66 (India)
24Ameeroonisa Begum v. Mehboob Begum, AIR 1953 SC 91 (India); Babulal Ahmtalal Mehta v. Collector of
Customs, Calcutta, AIR 1957 SC 877 (India); Ashoka Smokeless Coal India (P.) Ltd v. Union of India ¶ 161, (2007)
2 SCC 640, 697 (India)
25State of Bombay v. F.N. Balsara AIR 1951 SC 318 (India)
26DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 833 (AR Lakshmanan, V.R. Manohar
&BhagabatiProsad Banerjee ed.,14th Edition, Lexis Nexis,2009)
27M Nagraj v. Union of India, ¶ 118, (2006) 8 SCC 212, 277 (India)
28ChampakamDorairajan v. State of Madras, AIR 1951 Mad. 120; TL VENKATARAMA AIYAR, EQUALITY BEFORE
LAW(The year Book of Legal Studies, 1960); T Devadasan v. Union of India, A.I.R. 1964 S.C. 179, pg.185
ofthe Respondents
26
v. State of Bihar29, where the Supreme Court held that ‘although class legislation is prohibited
under Article 14 but it does not forbid reasonable classification’. In this case itself a test was
devised to ascertain the permissible Classification where two conditions were necessary to be
fulfilled-
The Classification must be founded on an intelligible differentia which distinguishes persons or

things that are grouped together from others left out of the group and,
The differentia must have a rational relation to the object sought to be achieved by the statute in
question.
(¶.6) It is most respectfully submitted that Section 6-A passes the dual test under Article 14, as it
is based on intelligible differentia and the differentia has a rational relation to the object sought
to be achieved. In this connection it is pertinent to note the background in which this amendment
was made. 6-A has been inserted especially as a consequence of the Tripartite Agreement which
was entered into in order to put to rest the then prevailing protests. It is further submitted that a
classification made on historical basis or geographical basis is not violative of Article 14. The
counsel most respectfully submits that to find out the reasons and the justification for the
classification the Court may refer to relevant material, eg objects and reasons appended to a Bill,
parliamentary debates, affidavits of the parties, matters of common knowledge, the background
circumstances leading to the passage of the Act, etc.30 . It is not necessary that for a classification
to be valid, its basis must always appear on the face of the law.31
(¶.7) It is humbly submitted that when the validity of legislation is challenged on the ground of
violation of Article 14, each case has to be examined independently in the context of Article 14,
and not by applying any general rule.32 The Hon’ble Supreme Court has observed:
29AIR 1955 SC 191 (India)
30JagadishPandey v. Chancellor, Bihar University, AIR 1968 SC 353 (India); State of Jammu and Kashmir v. TN
Khosa, AIR 1974 SC 1 (India)
31MP JAIN, INDIAN CONSTITUTIONAL LAW 912 (8th Edition., Lexis Nexis,2018.)
32MP JAIN, INDIAN CONSTITUTIONAL LAW 910 (8th Edition., Lexis Nexis,2018.)
ofthe Respondents
27
“It is settled law that differentiation is not always discriminatory. If there is a rational nexus
on the basis of which differentiation has been made with the object sought to be achieved by
particular provision, then such differentiation is not discriminatory and does not violate the
principles of Article 14 of the Constitution.”33
(¶.8)It is pertinent to look into the explanation of the principle of initial presumption of validity
as explained by the Hon’ble Supreme Court in Ashutosh Gupta v. State of Rajasthan:34
“There is always a presumption in favour of Constitutionality of enactment and the burden is

upon him who attacks it to show that there has been a clear transgression of the
Constitutional principles. The presumption of Constitutionality stems from a wide power of
classification which the Legislature must, of necessity possess in making laws operating
differently as regards different groups of persons in order to give effect to policies. It must be
presumed that the legislature understands and correctly appreciates the need of its own
people.”
It is most respectfully submitted that wherever the classification has satisfied the test of
reasonable classification, the court has to uphold the validity of the law.35 In conclusion, it is
most respectfully submitted that Section 6A of the Omberlands Citizenship Act is not ultra vires
of Article 14 of the Constitution of Omberlands.
[B] SECTION 6A IS NOT VIOLATIVE OF ARTICLE 21
(¶.9) It is most respectfully submitted that the amendment brought into the Citizenship act is not
violative of Article 21 36. Article 21, though couched in negative language, confers on every
person the fundamental right to life and personal liberty which has become an inexhaustible
33Union of India v. MV Valliappan, (1999) 6 SCC 259 (India)
34 (2002) 4 SCC 34, at 41 (India)
35Subramanian Swamy V. Director, Central Bureau Of Investigation And Another, 2014 AIR SC 2140 (India)
36INDIA CONST. art. 21

ofthe Respondents
28
source of many other rights.37 The protection of this right is available to citizens as well as non-
citizens.38 The Supreme Court in the Chakmas Case has ascertained the fact that the State is
bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and
failure to this would be failure to the Constitutional as well as the Statutory Obligations39. It is
submitted that the people who fled from Mumbaria are entitled to the rights under Article 21.
(¶.10) Article 21 includes theright to live in peace, to sleep in peace and the right to repose and
health40. The human dignity is also integral part of Article 2141. In the case of Louis De Raedt v.
Union of India42, the court held that the fundamental rights to life, liberty, dignity are available to
non-citizens of India. The interpretation of article 21 must be done in a liberal sense43 and
harmonious construction shall be preferred over strict. It is humbly submitted that Bhagawati J.,
has observed in Francis Coralie44
“We think that the right to life includes the right to live with human dignity and all that
goes along with it, namely, the bare necessaries of life such as adequate nutrition,
clothing and shelter over the head and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and mixing and commingling with fellow
human beings”.
37BHAGWATI, J. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597, 620.
38Bhuban v. State of A.P., para 6, AIR 1974 SC 2092 (India); Sunil v Delhi Admn., AIR 1978 SC 1675 (para. 53, 57,
164, 212). (India)
39N.H.R.C. v. State of Arunachal Pradesh 1996 AIR 1234 (India)
40Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 (India)
41Maneka Gandhi v. Union of India, AIR 1978 SC 597 (India)
42 1991 AIR SC 1886
43Francis Coralie Mullin V. Administrator, Union Territory of Delhi And Others, (1981) 2 SCR 516 (India)
44Francis Coralie v. Delhi, AIR 1981 SC 746, 753. (India)

ofthe Respondents
29
It is respectfully submitted that Section 6A was enacted to enable the Immigrants to be able to
avail the basic rights of livelihood as conferred by Article 21 of the Constitution of Omberlands.
(¶.11) It is most humbly submitted the Constitution articles 51, 73, 254 & 246 45 have given
consideration to‘international laws’ and ‘treaties’ and clause (c) of Article 51 specifically
mentions ‘International law’ and ‘Treaty Obligations’46. Furthermore Article 51 enshrines one of
the Directive Principles of State Policy (DPSP), embodied in Part IV of the Constitution47. The
Directive Principles, according to article 37, are not enforceable through the court of law,
nevertheless they are fundamental in the governance of the country and there is a Non-
Obligatory duty on the part of the State to apply these principles in making of laws.48 In the case
of Vishakha v. State of Rajasthan49, the Supreme Court held that “regard must be had to
international conventions and norms for construing domestic law when there is no inconsistency
between them and there is a void in the domestic law”. Not only did the court use international
law to find the meaning of domestic law, it also held that international conventions not
inconsistent with fundamental rights must be read “to enlarge the meaning and content thereof”’.
Sikri CJ has observed in Keshavananda50 as regards Article 51 as follows:
“It seems to be that, in view of Article 51 of the Constitution this court must interpret
language of the Constitution, if not interactively, which is after all Municipal law, in the light
of the United Nations Charter and the solemn declaration subscribed to by India.”
45INDIA CONST. 51, 73, 254 and 246
46KaramdeepSaini, Relationship between International and Municipal Law: A case study of India, Volume 3 Issue 2
INTERNATIONAL JOURNAL OF ADVANCED RESEARCH AND DEVELOPMENT 633 (2018)
47INDIA CONST. art. 36-51
48SunilKumar Agarwal, Implementation of International Law in India: Role of Judiciary, DEAN MAXWELL AND
ISLE COHEN DOCTORAL SEMINAR IN INTERNATIONAL LAW 1 (2010)
49 1997 SCC CRI 932
50Keshavananda Bharti v State of Kerala, AIR 1973 SC 1461 (India) and infra 51
ofthe Respondents
30
(¶.12) The Courts first look at the municipal law and if the municipal law is silent on a point then
the court refer to the Customary international law for the reference, the same thing has been
done by the Supreme Court time and again and in the case of Jolly George Varghese and Anr. Vs
Bank of Cochin51 accepted this view. It is humbly submitted that Art. 21 is to be interpreted in
conformity with the international law.
(¶.13) Right to life is one of the core fundamental rights which is accepted under the UDHR52.
The Right to life with human dignity encompasses within its fold some of the finest facets of
human civilization which make life worth living.53 It is most respectfully submitted that
International conventions such asUDHR54, ICCPR55, ICESC56 have also supported the ‘right to
life’ with basic human standards and protection for such is enshrined upon the State.
(¶.14) It is most humbly submitted that, drawing inference from the aforesaid arguments, the
amendment to Citizenship Act wherein Section 6A was introduced was not in violation of Article
21. Moreover, this enactment is in harmony with the principle of human rights as subscribed in
International Conventions and most pertinently it has operated to enable the State to conform
upon the immigrants the very rights granted by Art 21.
[C] SECTION 6A IS NOT IN VIOLATION OF ARTICLE 29(1)
51Jolly George Varghese and Anr. Vs Bank of Cochin (1980) 2 SCC 360 (India) (India);Karamdeep Saini,
Relationship between International and Municipal Law: A case study of India, INTERNATIONAL JOURNAL OF
ADVANCED RESEARCH AND DEVELOPMENT, Volume 3, 633 (2018)
52infra 48, Article 3 of UDHR states ‘The Right To Live Free’, where everyone has the right to life, liberty and
security of person
53Durga Dutt and Ors. v. State of Himachal Pradesh and Ors. Application No.238(THC)/2013
54 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at:
https://www.refworld.org/docid/3ae6b3712c.html [accessed 8 September 2019]
55UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations,
Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 8 September
2019]
56 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966,
United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html [accessed
8 September 2019]
ofthe Respondents
31
(¶.15) It is most respectfully submitted that, the heading of Article 2957 says “protection of
interest of minorities”. In the text of the Article however the word “minority” does not feature.
But the expression “any sections of citizens”, “distinct language, script or culture of its own” and
the “the right to conserve the same” in clause (1) as well as the prohibitory grounds of
discrimination referred to in clause (2), namely, “religion, race, caste, language, or any of them”
clearly spell out the minority orientation of the Article.58 It is most humbly submitted that, there
is no credible proof to show that the people of Auro fall under the ambit of ‘minority’. It has only
been stated that the people of Auro face a threat to be reduced to a minority in their own land.59
There is nothing to show that there is a threat to the Culture and Language of the people of Auro.
The fact that the report states that the People of Auro have been reduced to a mere 38% of the
total population is unverified and hence is just a baseless statement.
(¶.16) It is submitted that, under Article 29(1), the Right to conservation connotes the following-
(a) The right to profess, practice and preach its own religion, if it is religious minority,
(b) The right to follow its own social, moral, and intellectual way of life,
(c) The right to impart instructions in its tradition and culture,
(d) The right to perform any other lawful act or to adopt any other lawful measures for
the purpose of preserving its culture60
It is most respectfully submitted that the Amendment to the Citizenship Act does not in any way
affect any of the above-mentioned rights and it is further submitted that this Amendment is not
ultra vires the Constitution of Omberlands.
57 INDIA CONST. art. 29
58 3 SAMARADITYA PAL, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION 24 (Lexis Nexis, 2014)
59 Fact sheet Page 3
603 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 3565 (Y V Chandrachud, SS
Subramani, TS Doabia, BP Banerjee, ed. 8th edition, Lexis Nexis,2014)
ofthe Respondents
32
[D] SECTION 6A IS IN ACCORDANCE PRINCPLE OF NON-REFOULEMENT
(¶.17) It is most respectfully submitted that, under the well established principle of non-
refoulement, a refugee has a right to seek asylum which has been expressly mentioned in Art 14
of the UDHR61. Under International human rights law, the principle of non-refoulement
guarantees that no one should be returned to a country where they would face torture, cruel,
inhuman or degrading treatment or punishment and other irreparable harm. The prohibition of
refoulement under International human rights law applies to any form of removal or transfer of
persons, regardless of their status, where there are substantial grounds for believing that the
returnee would be at the risk of irreparable harm.62 It is further submitted that the Immigrants
from Mumbaria have been living in Omberlands since 1991. The declaration of 6A as ultra vires
would result in deportation of these persons which is a grave violation of Human Rights. These
persons face the risk of being treated as outsiders by the people of Mumbaria and hence sending
them back would violate the Principle of Non-Refoulement.
(¶.18) It is pertinent to note the background in which the people of Mumbaria fled to the State of
Auro. it is a matter of common knowledge that while in the fear of persecution the Mumbarians
might have not had their legal documents or had lost them in the process of fleeing. Non-
refoulement forms a part of customary law which is internationally recognized and accepted.
(¶.19) In the case of Khudiram Chakma v State of Arunachal Pradesh63, the judges referred to
Art. 14 of the UDHR in the context of refugees in India. In the case of National Human Rights
Commission v. State of Arunachal Pradesh64, the Supreme Court held that the refugees who had
come from Bangladesh due to persecution cannot be forcibly sent back to Bangladesh as the may
61 Universal Declaration of Human Rights, 1948 art.14
62UN High Commissioner for Refugees (UNHCR), UNHCR Note on the Principle of Non-Refoulement, November
1997, available at: https://www.refworld.org/docid/438c6d972.html [accessed 8 September 2019]
63 1994 Supp. (1) SCC 615
64National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742 (India)
ofthe Respondents
33
be killed, tortured or discriminated, thereby depriving them of their right to life under Art. 21 of
the Constitution. The judgement also highlighted that the country is governed by the ‘rule of law’
and that the right to life is a right available to any person, be it a citizen or a foreigner. In Dongh
Liam Kham v. Union of India65, the Supreme Court held that the Principle of Non-refoulement is
part of the guarantee right under Art. 21 of the Constitution irrespective of the nationality. It is
further submitted that Non-Refoulement is a customary principle and a peremptory norm which
cannot be derogated.
(¶.20) Many countries are actively helping and safeguarding refugees by providing them shelter,
medical help, and many other necessities. Due to the war in Syria, almost 4 million people fled
Syria since 2011 and 1 million settles in Lebanon. On the whole, Germany has taken 1 million
refugees in 2015 itself and provided them with all kinds of support. They welcomed them with
open hearts and even hosted banners in football stadiums stating “Welcome Refugees”. In
Germany, Right to Asylum is a constitutional right. The Asylum Act and Residence Act provide
rules and procedure for taking refugees. An in-person interview of the refugee is conducted and
experts of that country are consulted before accepting the application.66 It is most respectfully
submitted that Section 6A is in accordance with the constitutional provisions and also complies
with the international principles. Therefore, it is not ultra vires the Constitution of Omberlands.
65Dongh Liam Kham v. Union of India (2016) DLT226 (India)
66Asylum Act, Germany, LEGAL DESIRE (July 20 2019) https://legaldesire.com/human-rights-refugees-refugee-laws-

india-globally/
ofthe Respondents
34

OMBERLANDS CITIZENSHIP ACT ON THE BASIS OF AGREEMENT IS CHALLENGABLE?
[A] VALIDITY OF THE AMENDMENT
(¶.1) Article 11 of the Constitution enables Parliament to legislate on the acquisition and
termination of citizenship after the commencement of the Constitution and it also enables
Parliament to legislate on the continuance of citizenship at the commencement of the
Constitution even to the extent of overriding or modifying the provisions of Arts. 5 to 9.67 It is
most respectfully submitted that by virtue of Article 11, the Union of Omberlands has the right to
amend the Omberlands Citizenship Act.
(¶.2) It is humbly submitted that the Union of Omberlands has exclusive jurisdiction over areas
such as external affairs, defence, etc., and also has primacy over states in certain matters
enumerated in the Constitution of Omberlands.68 In the case of Hoechst Pharmaceuticals Ltd. v.
State of Bihar,69 the Court said that “Parliament has exclusive power to legislate with respect to
any of the matters enumerated in List I notwithstanding anything contained in clause (2) and (3).
The non-obstante clause in Art. 246(1) provides for predominance or supremacy of Union
Legislature. The combined effect of the different clauses contained in Art. 246 is no more or no
less than this that in respect of any matter falling in List I, Parliament has exclusive power of
legislation.
(¶.3) It is pertinent to note that in Article 246 of the Constitution the Union has the exclusive
jurisdiction to enact laws with regard to citizenship. The citizenship has been mentioned as a
subject in Union List under Entry 17 of List I of the Seventh Schedule. With reference to the
aforementioned arguments it is most humbly submitted that the respective amendment made to
the Citizenship Act was within the power and scope of the Union of Omberlands.
67 H.M. SEERVAI CONSTITUTIONAL LAW OF INDIA 339 ¶ 6.62 (4TH Edition., Central Law Publication, 1991)
68 Fact sheet Para 1.
69Heochst Pharmaceuticals Ltd. v. State ofBihar, (1983) 4 SCC 45. (India)

ofthe Respondents
35
[B] THE AMENDMENT WAS IN ACCORDANCE WITH THE INTERNATIONAL LAW
(¶.4) Statelessness, in a strictly legal sense describes people who are not considered nationals and
are unrecognized by any state.70 Under Art. 15, the UDHR states, “None shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality.”
(¶.5) The International Covenant on Economic, Social and Cultural Rights prohibits the creation
of conditions that undermine the social and economic survival of an individual and their family
members which in practice maybe generated by denial or withdrawal of Citizenship.71Article 15
of ICESCR affirms the right to take part in cultural life, and it maybe inferred to guard against
the forced assimilation of minority groups.
(¶.6) Although Omberlands is not a party to the Refugee Convention or the 1967 Protocol the
role of UNHCR in Omberlands cannot be negated. The Omberlands laws nowhere define the
term refugee, which creates a legal vacuum with respect to the term refugee. It is now established
by the judiciary that in case of a legal vacuum the judiciary is free to refer to International
Treaties, Conventions or customs to fill the gap as long as the reference is not in contravention to
the basic structure of the Indian Constitution, sovereignty of the State or express provision of law
enacted by Parliament UNHCR is an important agency which exclusively deals with the
conferment of refugee status and protection.72
70 UN General Assembly, Convention Relating to the Status of Stateless Persons, 28 September 1954, United
Nations, Treaty Series, vol. 360, p. 117, available at: https://www.refworld.org/docid/3ae6b3840.html [accessed 8
September 2019
71UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966,
United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html [accessed
8 September 2019]
72UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty
Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html [accessed 8 September 2019]
ofthe Respondents
36
(¶.7) It is most respectfully submitted that, the Preamble of the United Nations Charter starts
from we the people of the United Nations........implies that the relations among the states which
includes the concept of boundary less and the globe as a single family.73 It is humbly submitted
that, Omberlands Judiciary, though not empowered to make legislations, is free to interpret
Omberlands obligations under International Law into the municipal laws of the Country in
pronouncing its decision in a case concerning issues of International Law.74 Through ‘Judicial
activism’ the Omberlands Judiciary has played a proactive role in implementing Omberlands
International Obligations under International Treaties, especially in the field of human rights and
environmental law.
(¶.8) The basic Provision of the Constitution of Omberlands, by virtue of which International
Law becomes implementable through municipal laws of India is Article 51(c). Article 51(c) of
the Constitution provides that the state should endeavour to foster respect for International Law
and treaty obligations in the dealings of organized peoples with one another. It is pertinent to
note that Article 51 enshrines one of the Fundamental Principles of State Policy. The Directive
Principles (DPSP) according to Article 37 are not enforceable through the Court of Law,
nevertheless they are fundamental in the Governance of the Country and there is an obligatory
duty on the part of the State to apply these Principles in making laws. However, the non-
justiciability of Article 51 does not preclude Government to strive to achieve the Objectives of
the International Treaty, which has been ratified by it, in good faith through executive or
legislative Actions75.
(¶.9) The Court in Vishaka v. State of Rajasthan76 took recourse to International Convention for
the purpose of construction of domestic law. The Court observed that, in the absence of domestic
73 P.R. Ramdhass, Incorporation of International Law into domestic Legal System: A special Reference to the Indian
State Practice, Volume 4 Issue 2 INTERNATIONAL JOURNAL OF LAW, EDUCATION, SOCIAL AND SPORTS STUDIES 35
(2017)
74supra 48
75supra 48
76 AIR 1997 SC 3011 (India)

ofthe Respondents
37
law occupying the field any International Convention not inconsistent with the fundamental
rights and in harmony with its spirit must be read into those provisions to enlarge those
provisions to enlarge the meaning and content thereof, to promote the object of the Constitutional
guarantee.
(¶.10) It is also pertinent to note that, each State has a sovereign right to determine whom to
admit to its territory, subject to the State’s international obligations. As has been submitted
earlier, International conventions must be followed where there is a void in the domestic law or
where there is inconsistency in the norms for construing the domestic laws. 77 The Constitutional
Courts play an integral role in the interpretation of the Constitution. While doing so, the Courts
are not only required to take into consideration their own experience, the international covenants
but also keep in mind the Doctrine of Flexibility.78
(¶.11) The traditional notion of Sovereignty provides a framework for countries to govern
themselves and is based on the principle of non-interference of one country in another country’s
internalaffairs.79 With the development of Human right the principle of sovereignty has changed
it many ways. When it comes to issues like Human Rights or the environment, the Human rights
framework continues to provide the best possible avenue for ensuring that sovereignty is about
states acting responsibly. 80
(¶.12) It is most humbly submitted that the Amendment to Citizenship Act was brought in order
to preserve the objectives of International treaties and that the Union of Omberlands is
committed to protect the safety, dignity and human rights and fundamental freedoms of all those
people who entered the Territory of Auro before 1991. In conclusion it is submitted that this
77supra 49
78Union of India v. Naveen Jindal, AIR 2004 SC 1559 (India)
79C. Raj Kumar, State Sovereignty And Regional Autonomy in India: Human Rights and Governance Perspective,
102 AMERICAN SOCIETY OF INTERNATIONAL LAW,118(2008)
80ibid

ofthe Respondents
38
Amendment is valid in itself and the question as to whether it was based on the agreement and
the question pertaining to the validity of that agreement does not bare significance.

CITIZENSHIP ACT CAN BE CHALLENGED INSOFAR AS IT GRANTS BIRTHRIGHT
CITIZENSHIP TO CHILDREN WHERE EVEN ONE OF THE PARENTS IS AN
ILLEGAL IMMIGRANT?
[A] SECTION 3 OF THE OMBERLANDS CITIZENSHIP ACT IS VALID
(¶.1) It is most respectfully submitted that Section 3 of the Omberlands Citizenship Act plays a
major role in fighting the increasing phenomena of stateless children and revoking it would be
grave violation of Human Rights. The importance of human rights has been recognized in a
plethora of cases by the Supreme Court. It is humbly submitted that the implication of the
amplitude of Human Rights as enshrined in Part III of the Constitution cannot be fully
understood without taking into consideration the Preamble as well as Part IV dealing with
Directive Principles of State Policy. While interpreting the Human Rights, the Indian Judiciary
has not confined itself only to Part III on Fundamental Rights but has also relied heavily on the
DPSP and the Preamble though they are not made justiciable.
(¶.2) The ICCPR includes protection against arbitrary expulsion (Article 13) and equality before
Law (Article 26) and further sets out obligations to prevent the denial of citizenship by insisting
on birth registration and the reaffirmation of a child’s right to nationality under Articles 24 (2)
and 24 (3).81 The 1989 Convention on Rights of the Child (CRC) restates the Universal
protections and provisions on matters of citizenship and elaborates on the rights of Children.
Under Article 7 the CRC declares that every Child has a right to acquire a name and nationality
and stipulates that state should register births to make this happen. Under Article 7(2) it draws
attention to the prospect of statelessness in the event that births are not recorded and nationality
81Brad K. Blitz, 3 The Refugee Studies Centre’s (RSC) Forced Migration Policy Briefings, REFUGEE STUDY
CENTRE, 1, 2009
ofthe Respondents
39
not formally transmitted. Article 29 of International Convention on Protection of rights of all

migrant workers guarantees the right to Nationality to children of migrant workers. 82
(¶.3) It is essential to note that the International Law gives immense importance to Child rights
and recognition of these rights can be only done by giving the children a legal identity. The
power to make laws with regard to citizenship is bestowed upon the State by virtue of Article 11
of the Constitution. By virtue of this power the Omberlands Legislature has enacted Section 3 of
the Omberlands Citizenship Act strives to uphold this basic right of providing a legal identity to
the children born in Omberlands. By giving rights to the children, the state is not violating any
fundamental rights of its citizens and nor is it failing in its duties.
(¶.4) In Dilcia Yean and Violeta Bosico v. Dominican Republic 83 the Inter-American Court
concluded that the Dominican Republic’s discriminatory application of Nationality and Birth
Registration Laws render children of Haitian descent stateless and unable to access other critical
rights, such as Right to Education, Right to recognition of Jurisdictional Personality, the right to
a name, and the Right to equal protection before the law. In doing so, it affirmed the human right
to nationality as the gateway to the equal enjoyment of all rights as civic members of a state and
means of confronting the countries xenophobia.84
(¶.5) The fundamental right of children to acquire a nationality, derived from instruments
including the Universal Declaration of Human Rights (UDHR), 194885 and the United Nations
82ibid
83Inter-AmericanCourt of Human Rights (IACrtHR), 8 September 2005, [accessed 7 August 2019] https://
www.refworld.org/cases,IACRTHR,44e497d94.html
84Brad K. Blitz, 3 The Refugee Studies Centre’s (RSC) Forced Migration Policy Briefings, REFUGEE STUDY
CENTRE, 1, 2009
85 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III),[accessed 8
September 2019] https://www.refworld.org/docid/3ae6b3712c.html
Article 15 identifies citizenship as a fundamental human right :”(e)veryone has the right to a nationality and no one
shall be arbitrarily deprived of his nationality.”
ofthe Respondents
40
Convention on the Rights of the Child, 1989 (UNCRC) 86 was reaffirmed in June 2012 by the
Human Rights Council.87 The council, while recognising“that it is up to each State to determine
by law who its nationals are,” stated that, nonetheless, such a determination must be consistent
with its obligation under international law, and recalling the 1954 United Nations Convention
Relating to Status of Stateless Persons and the 1961 United Nations Convention on the
Reduction of Statelessness, called upon all the stated to adopt and implant legislation “to prevent
and reduce statelessness among women and children”.88 To this end, it encouraged States to
“facilitate, in accordance with their national law, the acquisition of nationality by children born
on their territories or to their nationals abroad who would otherwise be stateless”.89 This not only
is the responsibly of the state towards the international community but a duty owed to humanity.
(¶.6) The central theme of the UNCRC is that children are equal in worth to adults. The child’s
rights are couched in the language of human rights. In all actions concerning children, the best
interest of the child shall be a primary consideration. Under the Convention on the Rights of the
Child, it is contrary to the child’s best interests to remain stateless or separated from his or her
family90. The Right to life links it to the survival and development of the child. 91 The survival
and development of the child is not possible unless the children born through ISA are
immediately given legal status on the birth and unification with their family of intending parents
86Article 7(1) and 7(2) UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United
Nations, Treaty Series, vol. 1577, p. 3, [accessed 8 September 2019] https://www.refworld.org/docid/3ae6b38f0.html
87 The Resolution adopted by the Human Rights Council on “The Right to a nationality: women and children”
88UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty
Series, vol. 989, p. 175, [accessed 8 September 2019] https://www.refworld.org/docid/3ae6b39620.html
89ibid
90Sonja Starr & Lea Brilmayer, Family Separation as a Violation of International Law, Vol. 21 issue 3 BERKELEY
JOURNAL OF INTERNATIONAL LAW. 213, 222 (2003)
91 Art 6. UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
Series, vol. 1577, p. 3,[accessed 8 September 2019] https://www.refworld.org/docid/3ae6b38f0.html
ofthe Respondents
41
in the receiving state. The Convention also imposes obligations on the states to ensure family
reunification92.
(¶.7) In the case of All Saints High School v. State of A.P.93 the Supreme Court observed that “It
is a well settled rule that in interpreting the provisions of a statute the court will presume that the
legislation was intended to be intra vires and reasonable.” It is most humbly submitted that
Section 3 of the Omberlands Citizenship Act provides for the ascription of citizenship vis jus soli
if any one of the parents of the child is a citizen of Omberlands. The legislative power with
respect to citizenship, naturalisation and aliens belongs exclusively to the Parliament.94 It is
pertinent to note that the Section 3 of Omberlands Citizenship Act is also in consideration of the
history of the State of Aurom wherein there have been numerous inter-state marriages between
Auro and Mumbarian people. It is therefore asserted that, Section 3 of the Omberlands
Citizenship Act is valid.
92ibid
Article 10(1): “applications by a child or his or her parents to enter or leave a State Party for the purpose of family
reunification shall be dealt with States Parties in a positive, humane and expeditious manner.”
93 (1980) 2 SCC 478.
941 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 744(S.S. Subramani, 9th edition, Lexis
Nexis,2014)
ofthe Respondents
42
5. WHETHER THE OTHER PROVISIONS OF THE TRIPARTITE AGREEMENT OF

AURO PEOPLE FOR COMMITTING A BREACH THEREOF?
[A] THE TRIPARTITE AGREEMENT IS NOT BINDING
(¶.1) It is most humbly submitted that the Prime Minister of Omberlands entered into a tripartite
agreement with the Government of Aurom and Auro Youth United on 15th May 1999 and that
this agreement is not binding as it does not fulfil the requirements of a contract under Indian
Contract Act, 1872 and also the condition given in Section 299 (1) for government contracts. In
the case of State of Bihar v. Majeed95 , the Hon'ble Supreme Court held that:
"It may be noted that like other contracts, a Government Contract is also governed by the
Indian Contract Act, yet it is distinct a thing apart. In addition to the requirements of the
Indian Contract Act such as offer, acceptance and consideration, a Government Contract has
to comply with the provisions of Article 299. Thus subject to the formalities prescribed by
Article 299 the contractual liability of the Central or State Government is same as that of any
individual under the ordinary law of contract.”
(¶.2) It is most humbly submitted that only a contract complying with Article 299 of the
Constitution can be enforced by or against the Government. It is subject to the general provisions
of the contract law.96 Article 299(1) reads :
“299. Contracts — (1) All contracts made in the exercise of the executive power of
the Union or State shall be expressed to be made by the President, or by the
Governor of the State, as the case may be, and all such contracts and all assurances of
property made in the exercise of that power shall be executed on behalf of the
95 AIR 1954 SC 786
96Union of India v. Steel Stock Holders Syndicate, AIR 1976 SC 879 at 822; State of Rajasthan v. Bootamal
Sachdeva, AIR 1989 SC 1811.
ofthe Respondents
43
President or the Governor by such person and in such manners he may direct or
authorise.”
(¶.3) In order to ensure compliance with Article 299, government contracts must satisfy three
broad requirements:
they must be expressed to be made by the President, or by the Governor of the State, as the case
may be;
They must be executed; and
such execution must be on behalf of the President or the Governor by such persons and in the
manner as they may direct. 97
(¶.4) It is pertinent to take notice of the fact that the agreement was entered into by the Prime
Minister of Omberlands and there was no express authorization given by the President to do so.
The question of law which arises is whether the agreement is in compliance with the provisions
of Article 299 and the question of fact is whether all the necessary requirements under Article
299 are fulfilled or not. It has been held by the Supreme Court98 in a plethora of cases that it is a
rather settled position of law that Article 299 is a mandatory provision, and not directory.
Furthermore this has been specifically elucidated in the case of State of West Bengal v BK
Mondal & Sons.99
(¶.5) It is most humbly submitted that the agreement was entered into by the Prime Minister. It
can be inferred from the facts that he was not authorized by the President to enter into the
tripartite agreement and was acting on his own accord. Thus, there may have been some
97Stateof Bihar v Karam Chand Thapar & Brothers Ltd AIR 1962 SC 110 (2); Seth BikhrajJaipuria v Union of
India AIR 1962 SC 113 (16)-(18)
98SethBikrajJaipuria v. Union of India AIR 1962 SC 113; Union of India v. AL Ralia Ram AIR 1963 SC 1685; KP
Chowdhry v. State of Madhya Pradesh AIR 1967 SC 203; Mulamchand v. State of Madhya Pradesh AIR 1968 SC
1218; State of Uttar Pradesh v Murari Lal and Brothers Ltd (1917) 2 SCC 449; The Bihar Eastern Gangetic
Fisherman Co-operative Society Ltd v Sipani Singh (1977) 4 SCC 145; Sohan Lal (Dead) v Union of India (1991) 1
SCC 438; Lalji Khimji v. State of Gujarat (1993) Supp (3) SCC 567
99 AIR 1962 SC 779 (6).

ofthe Respondents
44
agreement, but the same is not in compliance with the constitutional requirement under Article
299 and therefore is held to be unenforceable 100. In consideration of the aforesaid arguments, it is
humbly submitted that the agreement is invalid and State of Aurom and The Union of
Omberlands are not liable to pay compensation.
[B] THE GOVERNMENT CANNOT BE HELD LIABLE FOR AN ACT COMMITTED IN

PURSUANCE OF A SOVEREIGN FUNCTION
(¶.6) The counsel humbly submits that the sovereign act carried out while entering into the
tripartite agreement by the Union under the sovereign function cannot be held liable for breach
of the contract. In the case of P. and O. Navigation Company v. Secretary of State for India101,
the question of the liability of state was discussed where the Supreme Court affirmed that the
secretary for the state i.e. the state shall only be liable for the acts of non sovereign nature, where
describing the difference between the sovereign and non sovereign act, Peacock C.J stated that
‘There is a great and clear distinction between acts done in exercise of what are termed
sovereign powers, and acts done in the conduct of undertakings which might be carried on by
private individuals without having such powers delegated to them. Further in the cases of State of
Rajasthan v. Vidyawati102 it was held that the immunity of state action can only be claimed if the
act in question was done in the course of the exercise of sovereign action. Further the case of
Kasturilal v. State of UP103, the Court unanimously held that the government cannot be held
liable in case the act involved was a sovereign function.
(¶.7) It is humbly submitted that the Government entered into this tripartite agreement with an
intention to prevent the protests and further public unrest which falls under the ambit of
Sovereign Functions. It is further submitted that this agreement was entered into in the course of
100Bishandayal And Sons v. State Of Orissa 2001 AIR SC 544
101 (1868-69) 5 Bom. H.C.R. App. A. 1,
102 State of Rajasthan v. Vidyawati 1962 AIR 933
103supra 15
ofthe Respondents
45
exercise of Sovereign action. As has been contended above the Government cannot be made
liable for the Sovereign actions performed by it.

ofthe Respondents
46
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly
requested that this Honourable Court may be pleased to adjudge and declare that:
a) The writ petition is not maintainable under Art. 32 of the Constitution of Omberlands;
b) Section 6A of the Omberlands Citizenship Amendment Act, 1999 is not ultra vires the
Constitution of the Union of Omberlands;
c) Section 3 of the Citizenship Act, 1955 is not ultra vires the Constitution of Omberlands;
d) The Government of Omberlands is not bound by the tripartite agreement and hence is not
entitled to pay compensation
And pass such order writ or direction as the Honourable Court deems fit and proper in the
light of Justice, Equity and Good Conscience, for this the Petitioners shall duty bound pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTTED
COUNSEL FOR THE RESPONDENTS

ofthe Respondents
47

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NHRC-GNLU NATIONAL MOOT COURT COMPETITION, 2019

NHRC-GNLU NATIONAL MOOT COURT COMPETITION, 2019 142R

BEFORE THE HON’BLE SUPREME COURT OF OMBERLANDS

W.P. (C) NO. 23 OF 2019

SOCIETY FOR WELFARE OF INDIGENOUS PEOPLE

STATE OF AUROM …… RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

Written submissions on behalf

1. WHETHER THE PUBLIC INTEREST LITIGATION WRIT PETITION FILED BY

2. WHETHER SECTION 6A OF THE OMBERLANDS CITIZENSHIP ACT IS ULTRA

3. WHETHER THE ACTION OF REPUBLIC OF OMBERLANDS IN AMENDING THE

4. WHETHER CONSTITUTIONALITY OF SECTION 3 OF THE OMBERLANDS

5. WHETHERTHE OTHER PROVISIONS OF THE TRIPARTITE AGREEMENT OF

Written submissions on behalf

AIR All India Records

ILR Indian Law Reports

Written submissions on behalf

SCC Supreme Court Cases

SCR Supreme Court Record

U.O. I Union of India

UNCRC United Nations Convention on the Rights of the Child

UNHCR United Nations High Commissioner for Refugees

UDHR Universal Declaration of Human Rights

42. W. P Writ Petition

ARTICLES AND JOURNALS

Written submissions on behalf

4. N. Krishna Kumar, Role of Decisions Law In Developing Concept of Compensatory

5. Prashanti, Compensatory Jurisprudence In India, LEGAL SERVICE INDIA (August 4

6. Saurav Kumar, Victim Compensation Scheme: An Aspect of Modern

7. Vineet Kothari and Shreshtha Gupta, What Is PIL?,MANUPATRA (JULY 17 2019)

Written submissions on behalf

1. Ashish Yadav, Contractual Liabilty Of State In India: A Comparative Analysis,

2. Felton Kumar, Introduction: Children: From Rights to Citizenship, Volume 633THE

3. Government Contracts: The Defense of Sovereign Acts: Contracts. "Sovereign Acts"

4. K K Nigam, Due Process Of Law: A Comparative Study Of Procedural Guarantees

5. Karamdeep Saini, Relationship between International and Municipal Law: A case

6. Megha Purohit, Mayank Purohit, An Analysis Of Non-Refoulement In Indian Legal

7. Omar Chaudhary, Turning Back: An Assessment of Non-Refoulement under Indian

8. P.R. Ramdhass, Incorporation of International Law into domestic Legal System: A

9. Peter H. Schuck, Citizenship in Federal Systems, Volume 48 AMERICAN JOURNAL OF

10. Sonali Mahajan, Contractual Liability of State in India- An Analysis, Volume 2

11. Sunil Kumar Agarwal, Implementation of International Law in India: Role of

1) 1 &2 M.P. JAIN, INDIAN CONSTITUTIONAL LAW: WITH CONSTITUTIONAL DOCUMENTS

2) 1 CHITTY ON CONTRACTS (32nd edition, Thomson Reuters,2015)

4) 1,2&3 SAMARADITYA PAL, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION (Lexis

5) 2 M MONIR, LAW OF EVIDENCE (Shriniwas Gupta, 17th Edition, Universal Law

6) 3 ATAL BIHARI VAJPAYEE, FOUR DECADES IN PARLIAMENT (Shipra Publications, 1999)

7) 3 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA(Y V

8) ACHARYA DR. DURGA DAS DASU, COMMENTARY ON THE CONSTITUTION OF INDIA(Y.V

9) B P BANERJEE, WRIT REMEDIES: REMEDIABLE RIGHTS UNDER PUBLIC LAW (Bhaskar

Written submissions on behalf

16) EARL T. CRAWFORD, THE CONSTRUCTION OF STATUTES (Pakistan Law House,2014)

19) H.R. KHANNA, MAKING OF INDIAN CONSTITUTION(2nd Edition, Eastern Book

20) I-IV CONSTITUENT ASSEMBLY DEBATES (Lok Sabha Secretariat,2009)

21) J. BEATSON, A. BURROWS & J. CARTWRIGHT, ANSON’S LAW OF CONTRACT(29th Edition,

24) M ARILYN A CHIRON ,N ATIONALITY A ND S TATELESSNESS (Presses Centrales de

25) MINORITY RIGHTS: INTERNATIONAL STANDARDS AND GUIDANCE FOR IMPLEMENTATION

(United Nations, 2010)

26) MP JAIN, INDIAN CONSTITUTIONAL LAW (8th Edition., Lexis Nexis,2018.)

27) N S BINDRA, BINDRA’S INTERPRETATION OF STATUTES (M N Rao and AmitaDhanda, 10th

Written submissions on behalf

29) P. ISHWARA BHAT, FUNDAMENTAL RIGHTS: A STUDY OF THEIR INTERREALTIONSHIPS

Written submissions on behalf

5. Ankul Chandra Pradhan v. Union of India, (1997) 6 SCC 1 (India) ……………………. 4