Final Petitioner
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RNB GLOBAL UNIVERSITY MOOT COURT COMPETITON, 2018
2nd RNBGU NATIONAL MOOT COURT COMPETITION
IN THE HON’BLE SUPREME COURT OF SOUTH KINGONDOM Original Civil Jurisdiction Original
U
In the matter of, Section 6A of the Citizenship Act, 1955 Section 2&4 of The Immigrants (Expulsion from Assam Act, 1950 Articles 5, 6, 14, 21, 29(1),325,326 & 355 of Constitution of South Kingondom
W.P. NO. ______/2018 (Writ Petition filed under Article 32 of Constitution) Some Citizen of Jangasam………………………… Jangasam…………………………………… ………… PETITIONER VERSUS Union of South Kingondom & Ors. ………………………. RESPONDENT RESPONDENT
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TABLE OF CONTENTS
S.No. Heading
Page No.
1
List of Abbreviations
3
2
Index of Authorities
4-7
3
Statement of Jurisdiction
4
Statement of Facts
9-10
5
Statement of Issues
11
6
Summary Of Arguments
12-14
7
Arguments Advanced
15-30
The challenge to the constitutional validity of Section 6A of the Citizenship (Amendment) Act, 1985 is not barred by delay and laches and the writ petition is maintainable.
15-18
7(1)
8
The sovereignty and integrity of South Kingondom is itself at stake and pleas
7(2)
against violation of Articles 21&29 of the Constitution, the petitions cannot be
19-21
dismissed at threshold on the ground of delay/laches alone. Section 6A of the Citizenship (Amendment) Act, 1985 violates Articles 325 and
7(3)
22-23
326 of the Constitution of South Kingondom. Section 6A of the Citizenship (Amendment) (Am endment) Act, 1985 violates Article 29(1).
7(4) 7(5) 7(6) 8
24-26 There is a necessity of issuing appropriate directions to the Union of South Kingondom and the State of Jangasam to ensure that effective steps are taken to prevent illegal access to the country from North Kingondom. The mechanism of deportation of illegal migrants after they are detected to be
29-30
illegal migrants.
Prayer
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TABLE OF CONTENTS
S.No. Heading
Page No.
1
List of Abbreviations
3
2
Index of Authorities
4-7
3
Statement of Jurisdiction
4
Statement of Facts
9-10
5
Statement of Issues
11
6
Summary Of Arguments
12-14
7
Arguments Advanced
15-30
The challenge to the constitutional validity of Section 6A of the Citizenship (Amendment) Act, 1985 is not barred by delay and laches and the writ petition is maintainable.
15-18
7(1)
8
The sovereignty and integrity of South Kingondom is itself at stake and pleas
7(2)
against violation of Articles 21&29 of the Constitution, the petitions cannot be
19-21
dismissed at threshold on the ground of delay/laches alone. Section 6A of the Citizenship (Amendment) Act, 1985 violates Articles 325 and
7(3)
22-23
326 of the Constitution of South Kingondom. Section 6A of the Citizenship (Amendment) (Am endment) Act, 1985 violates Article 29(1).
7(4) 7(5) 7(6) 8
24-26 There is a necessity of issuing appropriate directions to the Union of South Kingondom and the State of Jangasam to ensure that effective steps are taken to prevent illegal access to the country from North Kingondom. The mechanism of deportation of illegal migrants after they are detected to be
29-30
illegal migrants.
Prayer
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LIST OF ABBREVIATIONS
ABBREVIATION
ACTUAL TERM
AC
Appeal Cases
AIR
All India Reporter Reporte r
All.
Allahabad
All ER
All England Law Reports (United Kingdom)
Asm.
Assam
Cr.L.J
Criminal Law Journal
FIR
First Information Informatio n Report
Gau.
Guwahati
HL
House of Lords
I.T.O
Income Tax Officer
Ker.
Kerala
Ori.
Orissa
Para.
Paragraph
SCALE
Supreme Court Almanac
SC
Supreme Court
SCC
Supreme Court Cases
SCJ
Supreme Court Journal
SCR
Supreme Court Reporter
SCW
Supreme Court Weekly
Supdt.
Superintendent
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INDEX OF AUTHORITIES
Judicial Pronouncements: S.No. Name of the Case
Citation
Page No.
1
A.M .Patroni vs. E.C.Kesavan
A.I.R.1964 Ker.478.
25
2
Ahmedabad Municipal Corporation v. Nawab
(1997) 11 SCC 123.
20
Khan Gulab Khan 3
Assam Sanmilita Mahasangha & Ors vs Union Of
(2015) 3 SCC 1
21,29
India & Ors 4
Basheshar Nath v. CIT, Delhi, Rajasthan
[(1959) Supp (1) SCR 528]
18
5
Collector (LA) v. Katiji,
(1987) 2 SCC 107
17
6
D. A.V College Jalandhar v State of Punjab
AIR 1971 SC 1737
24
7
Dayal Singh v. Union of India
(2003) 2 SCC 593.
17
8
Dehri Rohtas Light Railway Co. Ltd. v. District
(1992) 2 SCC 598
17
(1969) 1 SCC 185.
17
AIR 1981 SC 746
20
[(1967) 2 SCR 762]
18
Board, Bhojpur 9
Durga Prashad v. Chief Controller of Imports and Exports,
10
Francis Corallie Mullin v. Administrator, Union Territory of Delhi
11
I.C. Golaknath v. State of Punjab
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12
In re. Kerala Education Bill 1957
AIR 1958 SC 956 at 976.
26
13
Jagdev Singh Sidhanti vs. Pratap Singh Daulta
AIR 1965 SC 183
24
14
LIC of India Vs. Ram Pal Singh Bisen
(2010) 4 SCC 491
27
15
Louis De Raedt vs. Union of India
1991 (3) SCC 554
19
16
Maneka Gandhi v. Union of India
(1978) 1 SCC 248
20
17
Olga Tellis & Ors. v. Bombay Municipal
AIR 1986 SC 180
20
A.I.R.1951 Assam 163.
25
of
(1974) 1 SCC 317
18
S.P. Gupta and others v. President of India and
AIR 1982 SC 149.
16
Corporation 18
Ramani Kantha Bose v. Gauhati
19
Ramchandra
Shankar
Deodhar
v.
State
Maharashtra 20
Others 21
Santosh v. Ministry of H.R.D.,
(1994) 6 SCC 579
26
22
Sarbananda Sonowal vs Union Of India
A.I.R. 2005 S.C. 2920
20
23
Sarbananda Sonowal(II) vs Union Of India
(2007) 1 SCC 174.
28
24
Shankara Coop. Housing Society Ltd. v. M.
(2011) 5 SCC 607
17
Prabhakar 25
Shantistar Builders v. Narayan Khimalal Totame
AIR 1990 SC 630
20
26
State of Arunachal Pradesh v. Khudi Ram
1994 (Supp.) SCC 615
19
Chakma
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27
State of Bombay vs. Bombay Education Society
AIR 1954 SC 561
25
& Ors 28
CIVIL
State of Jammu and Kashmir v. R.K. Zalpuri
APPEAL
NOS.
8390-8391
OF
(S.L.P.(C)
NOS.11203-
21
2015
11204 OF 2014) 29
State of Uttar Pradesh v. Shah Muhammad
AIR 1969 SC 1234
23
30
T.K. Dingal v. State of West Bengal
(2009) 1 SCC 768.
21
31
The Fertilizer Corporation Kamgar Union v.
AIR 1981 SC 344
16
Union of India 32
Tilokchand Motichand v. H.B. Munshi & Anr
1969 1 SCC 110.
20
33
Tukaram Kana Joshi And Ors. Vs. Maharashtra
(2013) 1 SCC 353.
17
AIR 1969 SC 465
25
Industrial Development Corporation & Ors 34
W. Proost and others vs. State of Bihar
Books, Treatises & Digests: nd
Arvind P. Datar, Datar Commentary On Constitution Of India (2 Ed. Reprint 2010)
Durga Das Basu, Shorter Constitution of India (14
th
Ed. Reprint 2011, Lexis
Butterworths Wadhwa, Nagpur)
th
H.M. Seervai, Constitutional Law of India: A critical commentary (4 Ed. Reprint 1999, Universal Book Traders, Delhi)
M.P. Jain, Indian Constitution Law (6
th
Ed. Reprint 2012, Lexis Nexis Butterworth
Wadhwa, Nagpur) th
P.M. Bakshi, The Constitution of India (14 Ed. 2017, Universal Law Publishing)
Pratap Bhanu Mehta, The Oxford Handbook of The Indian Constitution (Reprint 2016, Oxford Publications)
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Statutes, Legislations & International
Conventions: The Constitution of India, 1950 The Immigrants (Exclusion from Assam) Act, 1950 The Citizenship Act, 1955 The Foreigners Act, 1956 The Immigrants (Determination by Tribunals) Act, 1983 The Immigrants (Determination by Tribunals) Order, 2006
Websites Referred: www.scconline.com www.manupatrafast.com www.indiankanoon.com www.lexisnexis.com/in/legal
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STATEMENT OF JURISDICTION
It is most humbly submitted that, the Petitioner has approached this Hon’ble Court with a writ petition filed under Article 32 of the Constitution of South Kingondom. The petitioner has approached this Hon’ble court in apprehension of the violation of fundamental rights that inevitably occur should the implementation of the legislation of the government not be stopped. Therefore, the petitioner maintains that the jurisdiction of Art. 32 of the constitution, which protects the citizens of South Kingondom from any violation of their fundamental rights, is applicable in the present case. The present memorandum contains the facts, contentions and arguments of the present case.
The Article 32 of Constitution of South Kingondom reads as hereunder:
Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided fo r by this Constitution.
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STATEMENT OF FACTS
Factual Background:
In a Sovereign Democratic country of Kingondom, an event happened about 100 years ago which altered permanently the whole feature of one of its province Jangasam and destroyed the whole structure of Jangasamese culture and civilization. There has been an invasion of a vast horde of land-hungry immigrants mostly Muslims, from the districts of an adjoining Topdum, another Province of Kingondom. To cope with the situation the Government of Kingondom enacted a Foreigners Act of 1946 under which the burden of proving whether a person is or is not a foreigner lies upon such person.
Thereafter, about 70 years ago, the State of Kingondom was partitioned into two independent sovereign States, one South Kingondom and the other South Kingondom. Topdum, earlier a Province of Kingondom now is a part of North Kingondom.
A new Constitution came into force in South Kingondom. After the commencement of this Constitution of South Kingondom, under Article 35 it stated the requirements to be a citizen of South Kingondom. Article 36 of Constitution of South Kingondom acts as an exception to Article 35.
Procedural background:
The Immigrants (Expulsion from Jangasam), Act 1950 was enacted by South Kingondom to protect the indigenous inhabitants of its province Jangasam. The statement of objects and reasons of this Act says "during the last few months a serious situation had arisen from the immigration of a very large number of North Kingondom residents into Jangasam. Such large migration is dist urbing the economy of the province, besides giving rise to a serious law and order problem. The bill seeks to confer necessary powers on the Central Government to deal with the situation."
During the census of 1951 in South Kingondom a National Register of Citizens was prepared under a directive of the Ministry of Home Affairs containing information village-wise of each and every person enumerated therein.
Between 1948 and 1971, there were large scale migrations from North Kingondom to Jangasam, a province of South Kingondom. Given the continuing influx of illegal migrants from North Kingondom into Jangasam, the Parliament of South Kingondom enacted the Illegal Migrants (Determination by Tribunal) 1983. This Act was made applicable only to Jangasam and was expected to be a measure which speeded up the determination of illegal migrants in the State of Jangasam with a view to their deportation.
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The Parliament of South Kingondom inserted a new section 6A in its Citizenship Act in 1985. Thus the dangerous consequences of large scale illegal migration from North Kingondom, both for the people of Jangasam and more for the Nation as a whole, was required to be empathetically stressed. As a result of population movement from North Kingondom, the spectre loomed large of the indigenous people of Jangasam being reduced to a minority in t heir home state. Their cultural survival was in jeopardy, their political control was weakened and their employment opportunities were undermined.
The silent and invidious demographic invasion of Jangasam resulted in the loss of the geostrategically vital districts of lower Jangasam. The influx o f illegal migrants was turning these districts into a Muslim majority region. It was felt that it will then only be a matter of time when a demand for their merger with North Kingondom may be made. The rapid growth of international Islamic fundamentalism may provide the driving force for this demand. Loss of lower Jangasam will severe the entire land mass of the North East, from the rest of South Kingondom and the rich natural resources of that region will be lost to the Nati on.
It was in this backdrop that a writ petition was filed by a citizen of South Kingondom assailing the Constitutional validity of "The Illegal Migrants (Determination by Tribunals) Act, 1983" and the rules made thereunder.
In a judgment the Supreme Court of South Kingondom referred to the huge influx of illegal migrants into the State of Jangasam and came to the conclusion that the 1983 Act and the rules made thereunder operated in the reverse direction i.e. instead of seeing that illegal migrants are deported, it did the opposite by placing the burden of proof on the State to prove that a person happens to be an illegal migrant. The Court went on to hold that Article 355 of the Constitution had been violated, in as much as the Union had failed to protect the State of Jangasam against the external aggression and internal disturbance caused by the huge influx of illegal migrants from No rth Kingondom to Jangasam and went on to hold the 1983 Act to be violative of Article 14 as well. In as much as this Act was struck down, the Immigrants (Expulsion from Jangasam) Act, 1950 together with the Foreigners Act and the Foreigners Tribunal Order of 1964 were now to be the tools in the hands of Government to do the job of detecting illegal migrants who were then to be d eported.
Given the magnitude of the problem, a Foreigners (Tribunals for Jangasam) Order of 2006 was promulgated which was again struck down on the petition of the same citizen by the Supreme Court of South Kingondom being found to be unreasonable and arbitrary and which instead of expeditiously discovering illegal migrants and deporting them, again did the opposite.
In the year 2012 and in 2014 large scale riots took place in Jangasam resulting in the deaths of a large number of persons.
It is in this background that the present writ petition was filed.
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STATEMENT OF ISSUES
1. Whether challenge to the constitutional validity of Section 6A of the Citizenship (Amendment) Act, 1985 is barred by delay and laches?
2. Whether the petitions can be dismissed at the threshold on the ground of delay/laches, when the sovereignty and integrity of South Kingondom is itself at stake and pleas against the violation of Articles 21 & 29?
3. Whether Section 6A of the Citizenship (Amendment) Act, 1985 violates Articles 325 and 326 of the Constitution of South Kingondom in that it has diluted the political rights of the citizens of the State of Jangasam?
4. Whether Section 6A of the Citizenship (Amendment) Act, 1985 violates Article 29(1)?
5. Whether there is a necessity of issuing appropriate directions to the Union of South Kingondom and the State of Jangasam to ensure that effective steps are taken to prevent illegal access to the country from North Kingondom?
6. What should be the mechanism of deportation of illegal migrants after they are detected to be illegal migrants?
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SUMMARY OF ARGUMENTS
1. The challenge to the constitutional validity of Section 6A of the Citizenship (Amendment) Act, 1985 is not barred by delay and laches and the writ petition is maintainable. It is most humbly submitted before this Hon’ble Court that the present writ petition to challenge the constitutional validity of Section 6A of the Citizenship (Amendment) Act, 1985 is not barred by the doctrine of delay and laches and the present writ petition is maintainable. As the petitioner has a locus standi to approach the court for violation of Fundamental rights guaranteed under Articles 14, 21 & 29(1) and constitutional rights provided under Articles 325, 326 and 355. The present writ petition is filed and seeking a writ in nature of certiorari or any other appropriate writ, order or decision by court holding Section 6A of the Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down the impugned provision as ultra- vires the Constitution of South Kingondom. The principles of Limitation Act doesn’t apply in case of petition filed under Article 32, thereby the court has to take into account the facts and circumstances of each case before dismissing petition on ground of delay and l aches. Hence, the writ petition is maintainable before the Hon’ble Court.
2. The sovereignty and integrity of South Kingondom is itself at stake and the pleas against the violation of Articles 21 and 29 of the Constitution, the petitions cannot be dismissed at the threshold on the ground of delay/laches alone. It is most humbly submitted that in the present case, the petitioner in the writ petition represent an entire people – the tribal and non-tribal population of the State of Jangasam. In their petition, they have raised a plea that the sovereignty and integrity of South Kingondom is itself at stake as a massive influx of illegal migrants from a neighbouring country has affected this core Constitutional value. By the influx of illegal migrants from the neighbouring countries, the right to shelter, employment and the protection of the cultural values of original inhabitants is in jeopardy causing them to become a minority in their own Home state. Thus, there has been a gross infringement of Fundamental Rights guaranteed under Article 14, 21 and 29(1).
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The Amendment in Citizenship Act, 1985 has brought special provision for State of Jangasam, which is discriminatory and arbitrary under Article 14. Hence, the present writ petition is filed and seeking a writ in nature of certiorari or any other appropriate writ, order or decision by court holding S ection 6A of the Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down the impugned provision as ultra- vires the Constitution.
3. Section 6A of the Citizenship (Amendment) Act, 1985 violates Articles 325 and 326 of the Constitution of South Kingondom. It is most humbly submitted before this Hon’ble Court that Section 6A of the Citizenship (Amendment) Act, 1985 violates Articles 325 and 326 of the Constitution of South Kingondom as it dilutes the political rights of the citizens of Jangasam by providing all rights of citizens and entering of their names in the electoral rolls after a period of 10 years, conferring them with dual citizenship. Section 6(A) of the Citizenship Act confers ‘deemed’ citizenship to ‘persons from undivided South Kingondom’ (presently Bangladesh) in utter violation of Section 5(b) of this Act. It is also violation of Article 355 of the Constitution; as instead of saving Jangasam from the menace of illegal migration, it has legitimize the stay of the illegal migrants in Jangasam. Hence, The petitioner in the instant case has filed the writ petition praying for a writ in the nature of Certiorari or any other appropriate writ(s), order(s) or direction(s) declaring Section 6A of the Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down impugned provision as ultravires the Constitution of South Kingondom.
4. Section 6A of the Citizenship (Amendment) Act, 1985 violates Article 29(1). It is most humbly submitted before this Hon’ble Court that Section 6A of the Citizenship (Amendment) Act, 1985 violates Article 29(1) of the Constitution of South Kingondom. Article 29(1) is not subjected to any reasonable restrictions. The right conferred upon the citizens to conserve their language, Script and culture is made absolute by the Constitution. In the instant case, there has been a violation of the minority rights of the original inhabitants of Jangasam who have been limited to a minority in their own state and their cultural survival was in jeopardy, their political control was weakened and their employment opportunities were undermined infringing Fundamental Right under Article 29(1) which talks about conservation of culture of minorities. Hence, The petitioner has filed the present writ petition asking for a writ in the nature of Certiorari or any other appropriate writ(s), order(s) or direction(s) declaring Section 6A of the Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down the impugned provision as ultra-vires the Constitution of South Kingondom.
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5. There is a necessity of issuing appropriate directions to the Union of South Kingondom and the State of Jangasam to ensure that effective steps are taken to prevent illegal access to the country from North Kingondom. It is most humbly submitted before this Hon’ble Court that there has been a necessity of issuing appropriate directions to the Union of South Kingondom and the State of Jangasam to ensure that effective steps are taken to prevent illegal ac cess to the country from North Kingondom. The Union of South Kingondom has time and again failed to deal with the issue of entry of illegal migrants in a stern way. Instead of deporting the illegal migrants, it only classify them as migrants. The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution of India and are struck down by the Supreme Court. Also, Foreigners (Tribunals for Assam) Order of 2006 was promulgated which was again struck down being found to be unreasonable and arbitrary and which instead of expeditiously discovering illegal migrants and deporting them, again did the opposite. Therefore, The petitioner has filed the present writ petition to be granted with a writ in the nature of Mandamus or any other appropriate writ(s), order(s) or direction(s) directing the Union of South Kingondom and The Registrar of National Register of Citizens to update the National Register of Citizens with respect to the State of Jangasam relying only on the details incorporated in the National Register of Citizens prepared in 1951.
6. The mechanism of deportation of illegal migrants after they are detected to be illegal migrants. It is most humbly submitted before this Hon’ble Court that the petitioner has filed the present writ petition and prays for issuing writ in the nature of Mandamus or any other appropriate writ(s), order(s) or direction(s) directing the respondents to treat 1951 as the base year for the purpose of detection and deportation of illegal immigrants in the State of Jangasam and directing the Government of South Kingondom and State of Jangasam to immediately take effective steps towards ensuring the deportation of the illegal immigrants from the territory of South Kingondom. The challenge of stemming this flow and repatriating the illegal immigrants back to Bangladesh is indeed daunting. A bundle of multipronged, well-coordinated strategies pursued under an appropriate legal framework might be better able to address this problem in a more effective manner. Tightening of Border Forces, regular monitoring, passing of a national legal framework for refugees and signing of a bilateral agreement with the Government of Bangladesh to deport the illegal migrants. Hence, the petitioner has approached the Hon’ble Court to issue directions and implement a mechanism of deportation of illegal migrants after their detection.
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ARGUMENTS ADVANCED
1. The challenge to the constitutional validity of Section 6A of the Citizenship (Amendment) Act, 1985 is not barred by delay and laches and the writ petition is maintainable. It is most humbly submitted before this Hon’ble Court that the present writ petition to challenge the constitutional validity of Section 6A of the Citizenship (Amendment) Act, 1985 is not barred by the doctrine of delay and laches and the present writ petition is maintainable. Article 32 of the Constitution which has been described as the “heart and soul” of the Constitution guarantees the right to move the Supreme Court for the enforcement of all or any of the fundamental rights conferred by Part III of the Constitution. This Article is, therefore, itself a fundamental right and it is in this backdrop that we need to address the preliminary submission on behalf of respondents.
(a) The Petitioner has a locus standi to file writ petition The rule of ‘Locus Standi’ implies that who can apply for an appropriate remedy under Article 32 (1). The traditional rule answer that the right to move the Supreme Court is only available to those whose fundamental rights are infringed. The power vested in the Supreme Court can only be exercised for the enforcement of fundamental rights. The writ under which the remedy is asked under Article 32 must be correlated to one of the fundamental rights sought to be enforced. The above traditional rule of Locus Standi that a petition under article 32 can only be filed by a person whose fundamental right is infringed has now been considerably relaxed by the Supreme Court in its rulings. The Court now permits public interest litigations (PIL) or social interest litigations at the instance of ‘Pubic Spirited Citizens’ for the enforcement of Constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. 1 In the instant case, a citizen has filed a writ petition invoking the jurisdiction of the Hon’ble Court to grant a writ in nature of Certiorari declaring Section 6A of the Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down the impugned provision as ultra-vires the Constitution as the influx of illegal immigrants has loomed the indigenous people of Assam being reduced to a minority in their home state. Their cultural survival is in jeopardy, their political control is weakened and their employment opportunities are undermined. 1
nd
Arvind P. Datar, Datar Commentary On Constitution Of India (2 Ed. Reprint 2010)
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Underlining the significance of Article 32, the Supreme Court has characterized the jurisdiction conferred on it by Article 32 in The Fertilizer Corporation Kamgar Union v. Union of India 2 as “an important and integral part of the basic structure of the Constitution.” Because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated. A right without a remedy is a legal conundrum of a most grotesque kind. Article 32 confers one of the highly cherished rights. 3 This jurisdiction would certainly be able to minimize, if not completely stop, the abuse of power by public authorities. Henceforth they would be much more vigilant in exercising their powers and performing their Constitutional and statutory duties and obligations towards the people, particularly poor and helpless persons. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of public would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the Parliament is ineffective. In such cases the Court would be under duty to interfere.
(b) Principles of Limitation Act does not apply in Writ Jurisdiction It is most humbly submitted that when a writ petition has been filed before the Supreme Court under Art.32 of the Constitution of South Kingondom, the Court’s power to enforce fundamental rights is the widest. There is no limitation in regard to the kind of proceedings envisaged in Article 32(1) except that the proceeding must be ‘appropriate’ and this requirement must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of fundamental rights. it is not obligatory for the court to follow adversary system. 4 In South Kingondom, the Limitation Act which prescribes different periods of limitation for suits, petitions or applications. There are also residuary articles which prescribe limitation in those cases where no express period is provided. If it were a matter of a suit or application, either an appropriate article or the residuary article would have applied. But a petition under Article 32 is not a suit and it is also not a petition or an application to which the Limitation Act applies. To put curbs in the way of enforcement of Fundamental Rights through legislative action might well be questioned under Article 13(3). The reason is also quite clear. If a short period of limitation were prescribed the Fundamental Right might well be frustrated. Prescribing too long a period might enable stale claims to be made to the detriment of other rights which might emerge. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit.
2
AIR 1981 SC 344. M.P. Jain, Indian Constitutional Law, Nagpur : Wadhwa and Company (2017) at p 703. 4 S.P. Gupta and others v. Pres ident of India and Others, AIR 1982 SC 149. 3
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In Tukaram Kana Joshi And Ors. Vs. Maharashtra Industrial Development Corporation & 5
Ors it has been ruled that: - “Delay and laches is adopted as a mode of discretion to decline exercise
of jurisdiction to grant relief. But, there is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analyzed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience”. And again:- “No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. 6 Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. 7 In other words, where circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. 8 When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. 9 The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. 10 The learned Chief Justice, M. Hidayatullah, C.J. observed that: “The implications of this decision are bound to be far reaching. It is likely to pull down from the high pedestal now occupied by the fundamental rights to the level of other civil rights. I am apprehensive that this decision may mark an important turning point in downgrading the fundamental rights guaranteed under the Constitution. I am firmly of the view that a relief asked for under Article 32 cannot be refused on the ground of laches. The provisions of the Limitation Act have no relevance either directly or indirectly to proceedings under Article 32 and left it to be decided on the facts of each case depending on what the breach of the fundamental right is, what the remedy claimed is, and when and how the delay arose.”
Sikri J., on the other hand was in favour of an inflexible time limit that is not beyond one year. Both Bachawat and Mitter, J., were observant that whether time under the Limitation Act had run out, and if so, whether the writ petition ought to be dismissed as a result.
5
(2013) 1 SCC 353. Durga Prashad v. Chief Controller of Import s and Exports, (1969) 1 SCC 185. 7 Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607. 8 Collector (LA) v. Katiji, (1987) 2 SCC 107. 9 Dayal Singh v. Union of India, (2003) 2 SCC 593. 10 Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598. 6
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Therefore, It is most humbly urged before the Hon’ble Court that the decision of the Hon’ble Court in Tilokchand Motichand case needs review as there cannot be a waiver of fundamental rights of a person as elaborately considered in Basheshar Nath v. CIT, Delhi, Rajasthan 11 by a Constitution Bench and held that there could be no waiver of a fundamental right founded on Article 14. Admittedly the provisions contained in the Limitation Act do not apply to proceedings under Article 226 or Article 32. The Constitution makers wisely excluded the application of those provisions to proceedings under Articles 226, 227 and 32 lest the efficacy of the constitutional remedies should be left to the tender mercies of the legislatures. The Hon’ble Supreme Court has laid down in I.C. Golaknath v. State of Punjab 12 that the Parliament cannot by amending the Constitution abridge the fundamental rights conferred under Part III of the Constitution. If we are to bring in the provisions of Limitation Act by an indirect process to control the remedies conferred by the Constitution it would mean that what the Parliament cannot do directly it can do indirectly by curtailing the period of limitation for suits against t he Government. 13
In Ramchandra Shankar Deodhar v. State of Maharashtra , a Constitution Bench was invited to dismiss a petition filed under Article 32 on the ground of laches. The petitioner having approached the court after a delay of eight years, the Court held that barring a writ petition containing stale claims is not a rule of law but a rule of practice based on sound and proper discretion. There is no inviolable rule that whenever there is a delay, the court must necess arily refuse to entertain the petition.
(c) A writ in the nature of Certiorari or any other appropriate writ shall be granted It is most humbly submitted before this Hon’ble Court that a writ in the nature of Certiorari or any other appropriate writ(s), order(s) or direction(s) declaring Section 6A of the Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down the impugned provision as ultra- vires the Constitution of South Kingondom. In the instant case, the silent and invidious demographic invasion of Jangasam resulted in the loss of the geo-strategically vital districts of lower Jangasam. The influx of illegal migrants was turning these districts into a Muslim majority region. It was felt that it will then only be a matter of time when a demand for their merger with North Kingondom may be made. The rapid growth of international Islamic fundamentalism may provide the driving force for this demand. Loss of lower Jangasam will severe the entire land mass of the North East, from the rest of South Kingondom and the rich natural resources of that region will be lost to the Nation. Therefore, the Hon’ble Court may be pleased to issue a writ declaring Section 6A of the Citizenship Act, 1955 as ultra vires the constitution of India. 11
[(1959) Supp (1) SCR 528] [(1967) 2 SCR 762] 13 (1974) 1 SCC 317 12
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2. The sovereignty and integrity of South Kingondom is itself at stake and the pleas against the violation of Articles 21 and 29 of the Constitution, the petitions cannot be dismissed at the threshold on the ground of delay/laches alone. It is most humbly submitted that in the present case, the petitioner in the writ petition represent an entire people – the tribal and non-tribal population of the State of Jangasam. In their petition, they have raised a plea that the sovereignty and integrity of South Kingondom is itself at stake as a massive influx of illegal migrants from a neighbouring country has affected this core Constitutional value. 14
That, in fact, it has been held in Sarbananda Sonowal vs Union Of India case that such an influx is “external aggression” within the meaning of Article 355 of the Constitution of India, and that the Central Government has done precious little to stem this tide thereby resulting in a violation of Article 355. As a result of this huge influx, periodic clashes have been taking place between the citizens of India and these migrants resulting into loss of life and property, sounding in a violation of Articles 21 and 29 of the Constitution of the Assamese people as a whole. In the instant case, there has been instances of not only an assault on the life of the citizenry of the State of Jangsam but there is an assault on their way of life as well. The culture of an entire people is being eroded in such a way that they will ultimately be swamped by persons who have no right to continue to live in this country. In Louis De Raedt vs. Union of India
15
, The Apex Court has held that the power of the Government
of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering its discretion and the executive government has unrestricted right to expel a foreigner. So far as right to be heard is concerned, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case.
16
17
In State of Arunachal Pradesh v. Khudi Ram Chakma , following Louis De Raedt , it was held that the fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country. After referring to some well-known and authoritative books on International Law it was observed that the persons who reside in the territories of countries of which they are not nationals, possess a special status under International Law. States reserve the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals like right to vote, hold public office or to engage in political activities.
14
A.I.R. 2005 S.C. 2920 1991 (3) SCC 554 16 1994 (Supp.) SCC 615 17 Supra 15. 15
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Aliens may be debarred from joining the civil services or certain profession or from owning some properties and the State may place them under restrictions in the i nterest of national security or public order. Nevertheless, once lawfully admitted to a territory, they are entitled to certain immediate rights necessary to the enjoyment of ordinary private life.
In
Sarbananda Sonowal vs Union Of India
18
, the Hon’ble Supreme Court had the opportunity to
decide a case with similar facts and held that Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and are liable to be deported. They have also raised a fervent plea that Article 14 also continues to be violated as Section 6A (3) to (5) are not time bound but are on-going.
19
Tilokchand Motichand v. H.B. Munshi & Anr. is a judgment involving property rights of 20
individuals. Ramchandra Deodhar’s case , also of a Constitution Bench of five judges has held that the fundamental right under Article 16 cannot be wished away solely on the ‘jejune’ ground of delay. Since Tilokchand Motichand’s case 21 was decided, there have been important strides made in the law. Property Rights have been removed from part III of the Constitution altogether by the Constitution 44th Amendment Act. The same amendment made it clear that even during an emergency, the fundamental right under Article 21 can never be suspended, and amended Article 359 (1) to give effect to this. The sole dissentient in the case was Hegde, J., who decided that Article 32 itself being a fundamental right, there is no question of delay being used to non-suit a petitioner at the threshold and a writ petition under Article 32 cannot be refused to be entertained on grounds of delay and laches alone.
22
23
In Maneka Gandhi v. Union of India , decided nine years after Tilokchand Motichand , Article 21 has been given its new dimension, and pursuant to the new dimension a huge number of rights have come under the umbrella of Article 21. 24
Further, in Olga Tellis & Ors. v. Bombay Municipal Corporation , the right to shelter has been read into Art.21. as an essential concomitant of the fundamental right to life. 25 It has now been conclusively held that all fundamental rights cannot be waived.
18
A.I.R. 2005 S.C. 2920 1969 1 SCC 110. 20 Supra 13. 21 Supra 19. 22 (1978) 1 SCC 248 23 Supra 19. 24 AIR 1986 SC 180; Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630; See also Protection of Human Rights Act § 2(1)(d) ( 1993) 25 Francis Corallie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123. 19
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In State of Jammu and Kashmir v. R.K. Zalpuri 26, the Hon’ble Supreme Court has held that the principle of delay and laches would not affect the grant of relief in all types of cases. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless noninterference would cause grave injustice. After referring to Tilokchand Motichand
27
28
and Rabindranath Bose , the Court held that the claim
for enforcement of the fundamental right of equal opportunity under Article 16 cannot be dismissed solely on the ground of delay/laches etc. Given these important developments in the law, the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the do ors of the court on any petitioner. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within the Limitation Act by reason of some article but this Court need not necessarily give the total t ime to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the fundamental right and the remedy claimed are when and how the delay arose. 29 In Assam Sanmilita Mahasangha & Ors vs Union Of India & Ors 30, the Supreme Court observed that: “When the contentions raised specifically with regard to pleas under Articles 21 and 29, of a whole class of people, namely, the tribal and non-tribal citizens of Assam and given the fact that agitations on this core are ongoing, we do not feel that petitions of this kind can be dismissed at the threshold on the ground of delay/laches. Indeed, if we were to do so, we would be guilty of shirking our Constitutional duty to protect lives of our own citizens and their culture. In fact, the time has come to have relook at the doctrine of laches altogether when it comes to violations of Art. 21 & 29.” Also, this amendment to the Citizenship Act is a violation of Article 14 of the South Kingondom Constitution. This amendment was done on the basis of an artificial classification, bereft of any rationale. This classification was specially made for Assam, which is nothing but discriminatory. As, in Meghalaya, if a person is a post-1951 migrant he/she would face deportation. Therefore, in the instant case, where there has been a gross violence of the fundamental rights of a whole community of people, the original inhabitants of State of Jangasam’s right to shelter and life has been infringed and also their cultural rights are in jeopardy. Hence, the petition liable to be heard.
26
CIVIL APPEAL NOS. 8390-8391 OF 2015 (S.L.P.( C) NOS.11203-11204 OF 2014) Supra 19. 28 1970 SCR (2) 697. 29 T.K. Dingal v. State of West Bengal, (2009) 1 SCC 768. 30 (2015) 3 SCC 1. 27
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3. Section 6A of the Citizenship (Amendment) Act, 1985 violates Articles 325 and 326 of the Constitution of South Kingondom. It is most humbly submitted before this Hon’ble Court that Section 6A of the Citizenship (Amendment) Act, 1985 violates Articles 325 and 326 of the Constitution of South Kingondom as it dilutes the political rights of the citizens of Jangasam. The petitioner in the instant case has filed the writ petition praying for a writ in the nature of Certiorari or any other appropriate writ(s), order(s) or direction(s) declaring Section 6A of the Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down impugned provision as ultra- vires the Constitution. The issue of illegal immigrants began to fester in the state of Assam, culminating in wide-spread protests in the form of the Assam Movement (1979-1985). The movement, characterised by intense political instability and riots, was led by the All Assam Student’s Union (AASU) and the All Assam Gana Sangam Parishad (AAGSP with a view to pressuring government officials into identifying and deporting illegal migrants. The movement was the manifestation of Assamese fear, triggered by the increase in the number of foreign nationals in the electoral list preceding the State Assembly Elections in 1979. The AASU proposed postponing the elections till such time that the names of the foreign nationals had been wiped off the list and the s aid nationals deported. Following the movement, the “Assam Accord” was signed on 15 August 1985. The Accord was a Memorandum of Settlement (MoS) between the AASU and the AAGSP and the central and state governments to end the prevalent agitation in Assam and paved the way for the formation of the Asom Gana Parishad, a political party which came into power in the subsequent elections. The Accord contained provisions for the development of Assam, as well as obligating the Government to see that “the international border shall be made secure against future infiltration by erection of physical barriers like walls, barbed wire fencing and other obstacles at appropriate places. Also, provided for two separate cut-off dates for regularisation of migrants .
Section 6A of the Citizenship Act – introduced through an amendment in 1985 – was the legislative enactment of the legal part of the Assam Accord. Section 6A divided “illegal” immigrants of South Kingondom origin (i.e., those whose parents or grandparents were born in undivided India) who came into Jangasam from Bangladesh into three groups: The first group (came to the state before 1966) was to be regularised. The second group (came to the state between 1966 and 1971) was to be taken off the electoral rolls, and regularised after ten years. The third group (came to the state after 1971) was to be detected and expelled in accordance with law.
The Parliament had passed the Illegal Migrants (Determination by Tribunals Act) of 1983. This Act authorised Government to set up Tribunals for purposes of determining whether migrants were illegal.
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Under the Act, the Government framed the Illegal Migrant Rules of 1984. The Act and the Rules, taken together, made some departures from the procedure under the Foreigners Act and the Foreigners Tribunal Order: for example, the procedure for making a reference to the Tribunal was made more onerous, the burden of proof was shifted from the State to the individual, etc. While the Government defended this regime on the basis of protecting minorities, who were genuine citizens of South Kingondom, from persecution they were also attacked as being too lax on illegal migration, and making it almost impossible to deport illegal migrants. Moreover, the 1955 Citizenship Act of the country prescribes the procedure for acquisition of citizenship by registration. Clause (b) of Section 5 of this legislation has provided that a person of South Kingondom origin, who “resides in any country other than undivided South Kingondom are eligible for South Kingondom citizenship.” Admittedly, Section 6A of the Citizenship Act confers ‘deemed’ citizenship to ‘persons from undivided South Kingondom’ (presently Bangladesh) in utter violation of Section 5(b) of this Act. These illegal migrants have been virtually conferred dual citizenship, as these migrants never renounced their East Pakistan or Bangladesh citizenship. These people, as required under the Citizenship Act of the country, have not taken any oath of allegiance to the Constitution. The March 25, 1971 cut-off date has also viol ated Article 21 of the South Kingondom Constitution, as this cut-off date is going to reduce the indigenous peoples of Assam into minorities in their own homeland. Besides, it has also violated Articles 325 and 326 of the Constitution, by conferring citizenship to the illegal migrants which has diluted their political rights as the deemed citizen’s names would be enter in the electoral rolls after a period of 10 years giving them political representation and they enjoy dual citizenship which is prohibited by the Constitution of South Kingondom under Article 9. 31 Section 6A of the Citizenship Act is also violation of Article 355 of the Constitution, as instead of abiding by its bounden duty to save Jangasam from the menace of illegal migration, the Government inserted this section in the Citizenship Act to legitimize the stay of the illegal migrants in As sam. Due to influx of illegal migrants who are provided with deemed citizenship, the original inhabitants of State of Jangasam have been limited to a minority in their own state and has caused insecurity among them that their political rights have been diluted as they have become a minority, their political representation has been reduced. The deemed citizens after the period of 10 years will be included in electoral rolls and could vote and elect their representatives which would harm the political interests of the minority. Hence, S.6A of Citizenship Act, 1955 to be d eclared unconstitutional. 31
State of Uttar Pradesh v. Shah Muhammad, AIR 1 969 SC 1234.
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4. Section 6A of the Citizenship (Amendment) Act, 1985 violates Article 29(1). It is most humbly submitted before this Hon’ble Court that Section 6A of the Citizenship (Amendment) Act, 1985 violates Article 29(1) of the Constitution of South Kingondom. The petitioner has filed the present writ petition asking for a writ in the nature of Certiorari or any other appropriate writ(s), order(s) or direction(s) declaring Section 6A of the Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down the impugned provision as ultra-vires the Constitution of South Kingondom. Article 29(1) gives protection to every section of the citizens having a distinct language, script or culture by guaranteeing their right to conserve the same. If such minorities desire to preserve their own language and culture, the State would not stand in their way. A minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30(1). Article 29(1) is not subjected to any reasonable restrictions. The right conferred upon the citizens to conserve their language, Script and culture is made absolute by the Constitution. In D. A.V College Jalandhar v State of Punjab 32, it was held that “The provision, as we construe it, is for the promotion of Punjabi studies and research and development of the Punjabi language, literature and culture which is far from saying that the University can under that provision compel the affiliated colleges particularly those of the minority to give instruction in the Punjabi language, or in any way impede the right to conserve their languages, script and culture. If the University makes provision for an academic and philosophical study and research on life and teachings of a saint, it cannot be said that affiliated colleges are being required to compulsorily study his life a nd teachings.”
The scope of Article 29(1) was discussed by the Supreme Court in Jagdev Singh Sidhanti vs. Pratap 33
Singh Daulta , the Supreme Court held that Right to conserve the language of the citizens includes
the right to agitate for the protection of the language. Political agitation for conservation of the language of a section of the citizens cannot therefore be regarded as a corrupt practice within the meaning of Section 123(3) of the Representation of the People Act. Unlike Article 19(1) which provides six freedoms, namely speech, assembly, associations, free movement, residence and profession. But these freedoms are subject to reasonable restrictions provided in Art. 19(2) to 19(6). Article 29(1) is not subject to any reasonable restrictions. 34 The basis of the Supreme Court pronouncement was that Article 29(1) is not subject to any reasonable restriction like Article 19(1). 32
AIR 1971 SC 1737 AIR 1965 SC 183 34 Ibid. p. 188 33
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Another important thing to be noted in this Article 29(1) is the application of the term ‘any section of society instead of the word ‘minority’. So its application is to be taken in a much wider sense. Generally, minorities are recognized in the World on the basis of religion, race and language but Article 29(1), in addition included script and culture in its domain. From the above discussion it is clear that the scope of the Article seems to be extraordinarily wide and meaningful for the minorities in South Kingondom. It is to be noticed that Article 29 (1) does not refer to any religion, even though the marginal note of the article mentions the interests of the minorities. Article 29(1) essentially refers to sections of citizens who have a distinct language, script or culture, even though their religion may not be the same. The common thread that runs through Article 29(1) is language, script or culture, and not religion. Article 29(2) debars the State from denying to any citizen admission into any educational institution maintained by the State or receiving aid out of State funds on the ground only of religion, race, caste, language or any of them. This prevision guarantees the rights of a citizen as an individual irrespective of the community to which he belongs. Therefore, all citizens irrespective of whether they belong to the majority or the minority groups are alike entitled to the protection of Article 29(2) in the matter of admission to the educational institutions maintained or aided by the State. 35 The Kerala High Court in A.M .Patroni vs. E.C.Kesavan 36 held that as the word minority and not been defined in the Constitution, it must be viewed that any community, religious or linguistic, which is numerically less than 50 per cent of the population of the State, was entitled to the protection of Article 30 and found that the Roman Catholics were a minority in Kerala.
In W. Proost and others vs. State of Bihar 37 , the Supreme Court held that the width of Article 30(1) could not be cut down by introducing in it considerations on which Article 29(1) was based. Article 29(1) is a general protection given to the minorities to conserve their language etc., while Article 30(1) gives a special right to the minorities to establish institution of their ‘choice and the ‘choice’ cannot be limited to institutions seeking to conserve language, script or culture. 38
For the first time in the old case of Ramani Kantha Bose v. Gauhati 39, it fell on the Assam High Court to explore the width and amplitude of "minority”• An interesting question arose in this case. The college in question was situated in Dhubri, Assam. It was established by the Bengalis. Could it be said that the Bengalis are a linguistic minority in the "area” or "locality"? It was held that they are a minority and that the usage of the words "area" or "locality" may not be purposive but casual. If the "area or locality test" is used for the determination of minority, it would lead to illogical conclusions. 35
State of Bombay vs. Bombay Education Society & Ors., AIR 1954 SC 561 A.I.R.1964 Ker.478. 37 AIR 1969 SC 465 38 Ibid. p. 468 para 8 39 A.I.R.1951 Assam 163. 36
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The term 'Composite Culture' has not been defined in the Constitution therefore, it was left to the judiciary to define it in due course of time. 'Composite culture', generally means unity in diversity or synthesis of many cultures, which is one of the most prominent features of society. 40 While ascertaining the meaning of the
meaning
of
the
expression
"culture"
and
the
expression "conserve", Articles 29 and 30 in relation to minorities, should be given attention as the subject heading given to these Articles "cultural and educational rights" and their subsequent Articlewise headings "Protection of interests of minorities" and "Right of minorities to establish and administer educational institutions" respectively. These marginal headings and the drafting history of these Articles make it clear that the intent of Constitution-makers was to protect cultural and educational rights of minorities. The spirit of Constituent Assembly debates also point to the fact that the object of these Articles was to safeguard the culture and language of minorities through education. The idea of giving some special right to the minorities is not to treat them as privileged section of the population but to give to the minorities a sense of security. Special rights for minorities were designed not to create inequalities but to bring about equality by ensuring preservation of minority institutions and by
guaranteeing
autonomy
in
the
matter of administration of these institutions and also
contribute to preserve the rich diversity of the country and give minority a sense of security . 41 Together, Article 29 & 30 confers four distinct rights on minorities. These include the right of: (a) Any sectіon of cіtіzens to conserve іts o wn language, scrіpt or culture; (b) All religious and linguistic minorities to establish and administe r educational іnstіtutіons of choice; (c) an educational institution against discrimination by State in the matter of State aid (on the ground that it is under the management of religious or linguistic minority; and (d) the citizen against denial of admission to any State-maintained or aided educational institution.
In the instant case, there has been a violation of the minority rights of the original inhabitants of Jangasam who have been limited to a minority in their own state and their cultural survival was in jeopardy, their political control was weakened and
their employment opportunities were
undermined. Therefore, S.6A of Citizenship Act, 1955 which came after the Amendment in 1985 was violative of Article 29(1) which talks about fundamental right of conservation of culture of minority. Section 6A (3),(4),(5) talks about registration o f a foreigner and providing him with the righ ts enjoyed by the citizen of country and shall be deemed to be a citizen of South Kingondom for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner. This has caused a direct conflict with the cultural rights enshrined under Article 29(1) which is an absolute right. Hence, it is most humbly prayed that the Court may be pleased to hold Section 6A of the Citizenship Act, 1955 as unconstitutional and violative of Article 29(1). 40
Santosh v. Ministry of H.R.D., (1994) 6 SCC 579.
41
In re. Kerala Education Bill 1957, AIR 1958 SC 956 at 976.
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5. There is a necessity of issuing appropriate directions to the Union of South Kingondom and the State of Jangasam to ensure that effective steps are taken to prevent illegal access to the country from North Kingondom. It is most humbly submitted before this Hon’ble Court that there has been a necessity of issuing appropriate directions to the Union of South Kingondom and the State of Jangasam to ensure that effective steps are taken to prevent illegal access to the country from North Kingondom. The petitioner has filed the present writ petition to be granted with a writ in the nature of Mandamus or any other appropriate writ(s), order(s) or direction(s) directing the Union of South Kingondom and The Registrar of National Register of Citizens to update the National Register of Citizens with respect to the State of Jangasam relying only on the details incorporated in the National Register of Citizens prepared in 1951. 42
A writ petition was filed in the case of Sarbananda Sonowal vs Union Of India , the Apex Court while discussing the problem being faced by the State of Assam due to illegal migration and their continued presence in the State has been vividly discussed the alarming situation. While striking out the IM(D)T Act, 1983, the Apex Court also dealt with the modality of proving one’s Indian citizenship. It has been emphasized that the burden of proof is always on the proceedee as per provisions of Section 9 of the Foreigners Act, 1946; dealing with the burden of proof, made the following observation :- “There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one’s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
In LIC of India Vs. Ram Pal Singh Bisen 43, Apex Court held that even admission of a document in evidence does not amount to its proof, in other words, mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to have proved the documents in accordance with law.
42 43
(2005) 5 SCC 665. (2010) 4 SCC 491.
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Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amounts to admission of contents but not its truth. In the instant case, the dangerous consequences of large scale illegal migration from North Kingondom, both for the people of Jangasam and more for the Nation as a whole, was required to be empathetically stressed. The silent and invidious demographic invasion of Jangasam resulted in the loss of the geo-strategically vital districts of lower Jangasam. The influx of illegal migrants was turning these districts into a Muslim majority region. 44
Therefore, in the case of Sarbananda Sonowal (I) vs Union Of India , The Apex Court has held that: (1) The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution of India and are struck down; (2) The Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function; (3) All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals ) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act , the Rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964;(4) It will be open to the authorities to initiate fresh proceedings under the Foreigners Act against all such persons whose cases were not referred to the Tribunals by the competent authority whether on account of the recommendation of the Screening Committee or any other reason whatsoever;(5) All appeals pending before the Appellate Tribunal shall be deemed to have abated; (6) The respondents are directed to constitute sufficient number of Tribunals under the Foreigners (Tribunals) Order, 1964 to effectively deal with cases of foreigners, who have illegally come from Bangladesh or are illegally residing in Assam. Given the magnitude of the problem, a Foreigners (Tribunals for Assam) Order of 2006 was promulgated which was again struck down being found to be unreasonable and arbitrary and which instead of expeditiously discovering illegal migrants and deporting them, again did the opposite. It was in the Sarbananda Sonowal(II) vs Union Of India
45
, that the Supreme Court struck down
this order. This indeed proves the inability of the Union of South Kingondom to enact proper laws to deport the illegal immigrants from the country. Therefore, a writ has been prayed before the Hon’ble Court to provide appropriate directions to the Union of South Kingondom and the State of Jangasam to ensure that effective steps are taken to prevent illegal access to the country from North Kingondom.
44 45
Supra 40. (2007) 1 SCC 174.
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6. The mechanism of deportation of illegal migrants after they are detected to be illegal migrants. It is most humbly submitted before this Hon’ble Court that the petitioner has filed the present writ petition and prays for issuing writ in the nature of Mandamus or any other appropriate writ(s), order(s) or direction(s) directing the respondents to treat 1951 as the base year for the purpose of detection and deportation of illegal immigrants in the State of Assam and directing the Government of South Kingondom and State of Jangasam to immediately take effective steps towards ensuring the deportation of the illegal immigrants from the territory of South Kingondom. The challenge of stemming this flow and repatriating the illegal immigrants back to Bangladesh is indeed daunting. A bundle of multipronged, well-coordinated strategies pursued under an appropriate legal framework might be better able to address this problem in a more effective manner.
46
In a recent case of Assam Sanmilita Mahasangha & Ors vs Union Of India & Ors having similar facts, the Hon’ble Supreme Court considered the necessity of issuing appropriate directions to the Union of India and the State of Assam to ensure that effective steps are taken to prevent illegal access to the country from Bangladesh; to detect foreigners belonging to the stream of 1.1.1966 to 24.3.1971 so as to give effect to the provisions of Section 6(3) & (4) of the Citizenship Act and to detect and deport all illegal migrants who have come to the State of Assam after 25.3.1971. The Court exercising the rule making power enshrined under Article 142 of the Constitution of India, passed the following directions:
a) Border fencing, Border Roads and provision for flood lights i. ii.
Complete the fencing along the Indo-Bangla Border Maintain the already completed fencing
iii.
Repair the fencing so as to constitute an effective barrier to cross border trafficking
iv.
Continuous patrolling along the riverine boundary
v. vi.
Motorable roads along the international border laid to increase effective patrolling Parts of the international border will be patrolled and monitored at vulnerable points that could provide means of illegal entry
vii.
Flood lights, wherever required, will also be provided
The court will monitor the progress with regard to these after 3 months and thereafter pass further directions as necessary, including a definite time schedule for completion of the works relating to border fencing, border roads and flood lights may be made by this Court. 46
(2015) 3 SCC 1.
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b) Foreigners Tribunals The court requested the Gauhati High Court to expedite and to finalise the process of selection of the Chairperson and Members of the Foreigners Tribunals, if required in phases, depending on the availability of officers opting to serve in the Tribunals. Within 60 days of the selection being finalized by the Gauhati High Court, the State of Assam will ensure that the concerned Foreigners Tribunal become operational. The Chief Justice of the Gauhati High Court is requested to monitor the functioning of the Tribunals by constituting a Special Bench which will sit at least once every month to oversee the functioning of the Tribunals.
c) Existing Mechanism of Deportation of Declared Illegal Migrants The court directed the Union of India to enter into necessary discussions with the Government of Bangladesh to streamline the procedure of deportation and to enforce a bilateral agreement between that provides for taking back nationals who stay illegally in the other country after due verification.
d) With regard to Monitoring The implementation of the aforesaid directions will be monitored by this Court on the expiry of three months from today. In the event it becomes so necessary, the Court will entrust such monitoring to be undertaken by an empowered committee which will be constituted by this Court, if and when required. The Supreme Court has also given orders that national registration of citizenship must be completed in border areas by January 1, 2016.
e) International Commitments Although India has traditionally been providing shelter to refugees from other countries in the region, it has yet to develop any national refugee laws. Nor is it a signatory to the United Nations 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. In the absence of any specific law dealing with refugees/illegal immigrants, all foreigners in India are covered by the Foreigners Act, 1946, which simply defines a foreigner as “a person who is not a citizen of India.” It does not distinguish between refugees and illegal immigrants, nor does it define refugees as a specific category needing humanitarian protection. In the absence of any legislation on the subject, refugee policy is based on ad hoc and undefined administrative measures. However, it doesn’t cover Bangladeshi nationals. India needs to enact a national refugee law so that refugees are clearly defined and can be distinguished from illegal immigrants, followed by concerted action to detect Bangladeshi immigrants, assign them to separate categories of refugees and illegal migrants, resettle or repatriate them, and prevent any further influx. South Kingondom may also consider taking assistance and advisory services from the UNHCR, the International Organization for Migration (IOM), and other concerned international agencies with experience in this kind of complex issue.
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