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TLL-Ansal University's 1st National Online Moot Court Competition 2020 Team Code: TM98 TLL-Ansal University's 1st National Online Moot Court Competition 2020 BEFORE THE HON’BLE SUPREME COURT OF INDICA [UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA] WRIT PETITION (CIVIL) NO. _/ 2019 & OTHER CONNECTED MATTERS Indican Union Shishlamic League & Ors ..........+ (PETITIONER) Union of Indica & OYS.........ssssccseesecenesecaeesecaeeeeeceeal (RESPONDENTS) SUBMISSION ON BEHALF OF THE PETITIONERS [MEMORIAL FOR PETITIONER] Page 1 INDEX OF AUTHORITIES 4 STATEMENT OF JURISDICTION 7 STATEMENT OF FACTS 8 ARGUMENTS PRESENTED 10 SUMMARY OF ARGUMENTS 11 ARGUMENTS ADVANCED 14 1) WHETHER OR NOT THE CITIZENSHIP AMENDMENT ACT IS CONSTITUTIONALLY VALID? 13 1.1) Relevance of Article 5 14 1.2) Violation of Article 14. 16 1.3) Basic Structure Doctrine 17 1.4) Classification, 18 1.5) Violations of Principles of International Law. 21 2)WHETHER OR NOT THE PROTEST LEADING TO RIOTS COULD BE INCLUDED AS PEAVEFUL PROTEST? 23 2.1) Article 19 23 2.2) Public Protests 24 2.3) Current Scenario. 26 2.4) Test for Reasonableness 28 2.5) Different Views 28 3)WHETHER OR NOT THE FUNDAMENTAL RIGHTS OF ANY SECTION IS BEING VIOLATED BY THE ACT AND WHETHER OR NOT THE GOVERNMENT FAILED TO FULFIL CONSTITUTIONAL DIRECTIVE?_30 3.1) Violation of Fundamental Rights 30 3.2) Non Fulfilment Directive Principles of State Policy. 32 4) WHETHER OR NOT THE INTERNET BAN HAS VIOLATED ANY FUNDAMENTAL RIGHT TO INDICAN CONSTITUTION? 35 4.1) Right to Speech and Expression under Article 19 (1) 35 4.2) Internet & Freedom of Speech and Expression. 36 4.3) Test of Proportionality 37 PRAYER 40 rr [MEMORIAL FOR PETITIONER] Page 2 TLL-Ansal University's 1st National Online Moot Court Competition 2020 Sharma Transport v Government of A.P, (2002) 2 SCC 188 : AIR 2002 19 SC 322 State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 (para. 308); 19 Indian Young Lawyers Association v. State of Kerala, (2018) SCC 19 Online SC 1690 (para. 189) Kedarnath Bajoria v State of West Bengal, AIR 1954 SC 660 20 Vishaka v State of Rajasthan, (1997) 6 SCC 241, AIR 1997 SC 3011 21 K. S Puttaswamy v. Union of India, W P (CIVIL) NO 494 OF 2012 22 Government of India v Cricket Association of Bengal, 1995 AIR 1236, 23 1995 SCC (2) 161 Shri Dinesh Trivedi, MP & Orsv.Union of India, (1977) 14 SCC 306 23 State of Uttar Pradesh v. Raj Narain, 1975 AIR 865, 1975 SCR (3) 333 22 Romesh Thappar v. State of Madras, AIR 1950 SC 124 24,36 Indian Express v. Union of India, 1986 AIR 515, 1985 SCR (2) 287 24,36 Union of India v. Association for Democratic Reforms, 2002 (3) SCR 24 294 S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204, 1989 SCC (2) 24 574 Om Prakash v. Emperor, AIR 1956 All 241, 1956 CriLJ 452 24 Re-RamlilaMaidan Incident Dt ... vs Home Secretary And Or, SUO 26 MOTU WP (CRL.) NO. 122 OF 2011 Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 28,38 633 : (1960) 2 SCR 821 Kedar Nath v. State of Bihar, 1962 AIR 955, 1962 SCR Supl. (2) 769 28 Natural Resources Allocations; In Re Special Reference No. 1 of 2012, 30 (2012) 10 SCC 1 (77) R.K. Garg v. Union of India, (1981) 4 SCC 675 30 E.P.Royappa v. State of Tamil Nadu, 1947 4 SCC3. 32 Francis Coralie Mullin v. The Union Territory of Delhi , 1981 1 SCC 33 608 Sri Srinivasa Theatre v. Government of Tamil Nadu, AIR 1986 SC 999 32 [MEMORIAL FOR PETITIONER] Page 5 TLL-Ansal University's 1st National Online Moot Court Competition 2020 DDA v. Joint Action Committee, Allotee of SFS Flats, (2008) 2 SCC 33 672, at page 691 Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 36 All SC 1642 Secretary, Ministry of Information & Broadcasting, and Government of 36 India v. Cricket Association of Bengal, AIR 1995 SC 1236 : (1995) 2 SCC 161 Anuradha Bhasin v. Union of India [WP(C) 1031/2019] 37 Chintaman Rao v. State of MP, AIR 1951 SC 118 : 1950 SCR 869 37 -K Javali v. State of Mysore, AIR 1966 SC 1387 : (1962) 1 LLJ 134 38 Om Kumar v. Union of India, AIR 2000 SC 3689 38 Modern Dental College and Research Centre v. State of MP, (2009) 7 38 SCC 751 : AIR 2009 SC 2432 Shreya Singhal v. Union of India, AIR 2015 SC 1523 39 BOOKS 1) Black Law’s Dictionary 2) M. P Jain, Indian Constitutional Law, (7" Edition. 2014) 3) D D Basu, Shorter Constitution of India, (14" Edition. 2009) STATUTES 1) Constitution of India, 1950 2) Indian Penal Code, 1860 3) International Covenant on Civil and Political Rights, 1954 4) Universal Declaration of Human Rights, 1948 5) Citizenship Act, 1955 6) Foreigners Act, 1946 7) Unlawful Activities (Prevention) Act, 1967 8) Citizenship (Amendment) Act, 2019 [MEMORIAL FOR PETITIONER] Page 6 TLL-Ansal University's 1st National Online Moot Court Competition 2020 STATEMENT OF JURISDICTION THE PETITIONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE SUPREME COURT OF INDICA, THE MEMORANDUM FOR THE PETITIONERS UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA. [MEMORIAL FOR PETITIONER] Page 7 TLL-Ansal University's 1st National Online Moot Court Competition 2020 ARGUMENTS PRESENTED ISSUE 1: WHETHER OR NOT THE CITIZENSHIP AMENDMENT ACT IS CONSTITUTIONALLY VALID? ISSUE 2: WHETHER OR NOT THE PROTEST LEADING TO RIOTS COULD BE INCLUDED AS PEACEFUL PROTESTS? ISSUE 3: WHETHER OR NOT THE FUNDAMENTAL RIGHTS OF ANY SECTION IS BEING VIOLATED BY THE ACT AND WHETHER OR NOT THE GOVERNMENT FAILED TO FULFIL CONSTITUTIONAL DIRECTIVES? ISSUE 4: WHETHER OR NOT THE INTERNET BAN HAS VIOLATED ANY FUNDAMENTAL RIGHTS TO INDICAN CONSTITUTION? [MEMORIAL FOR PETITIONER] Page 10 TLL-Ansal University's 1st National Online Moot Court Competition 2020 SUMMARY OF ARGUMENTS ISSUE 1: WHETHER OR NOT THE CITIZENSHIP AMENDMENT ACT IS CONSTITUTIONALLY VALID? - It is contended that the Citizenship Amendment Act is constitutionally invalid. A basic sweep of the legal principles and a reasonable interpretation of the Constitution’s language will show that the CAA breaches the fundamental right, especially the fundamental right and guarantee of equal treatment as contained in Article 14. The CAA has basically defeated the objective of providing citizenship to those fleeing from persecution by bringing in the religious test for acquiring this citizenship. The entire classification is absolutely arbitrary and wholly unjust. - Based on the simple reading of CAA, three separate classifications can be made in the current scenario. The first would be that migrants from Zakistan, Afghanistan and Bangladesh have been distinguished from the migrants all across the world. Secondly, a classification has been made on the basis of faith separating significantly the shislamik Community from the Sindhu, Jain, Sikh, Siddhist and Chrisman communities. ISSUE 2: WHETHER OR NOT THE PROTEST LEADING TO RIOTS COULD BE INCLUDED AS PEACEFUL PROTESTS? - It is humbly contented that protests leading to riots can be included as valid protests. The government in any country is there to ensure proper functioning of the country. It is absolutely important for a government to give correct information to its citizens and to take into consideration demands and wishes of the citizens. Even when the government is criticized, it must take it in stride and try to implement amends instead of shutting down the voices of the people like it was done in the current case. Open criticism of government policies and operations is not a ground for restricting speech and expression. - The protests against the Citizenship Amendment Act are a sign of a democratic society whose logic demands that the voice of the society be heard by those in power. In the current case, the protests were not violent. The police force used violence to end the [MEMORIAL FOR PETITIONER] Page 11 TLL-Ansal University's 1st National Online Moot Court Competition 2020 protests and hence encroached upon every individual’s freedom to speech and expression. The implementation of Section 144 of the Indian Penal Code was unnecessary and arbitrary. ISSUE 3: WHETHER OR NOT THE FUNDAMENTAL RIGHTS OF ANY SECTION IS BEING VIOLATED BY THE ACT AND WHETHER OR NOT THE GOVERNMENT FAILED TO FULFIL CONSTITUTIONAL DIRECTIVES? - It is most humbly submitted that Article 14 guarantees all ‘persons’ (not only citizens) equality before the law and equal protection of law. The Court has developed the two-part reasonable classification test for assessing whether a law violates Art. 14: (1) any differentiation must be founded on ‘intelligible differentia’; (2) ‘that differentia’ must have a rational relation to the object sought to be achieved by the Act’. CAA fails to fulfill both these criteria and violates Article 14. The Act also violates Article 21 of the Constitution of Indica, as it violates the right to live with dignity of individuals who are not covered under the special dispensation of the Amendment Act, solely on the basis of their membership to a particular religion. The State has by making such irrational and arbitrary differentiation failed to fulfill its directive under Article 38 of the Indican Constitution. ISSUE 4: WHETHER OR NOT THE INTERNET BAN HAS VIOLATED ANY FUNDAMENTAL RIGHTS TO INDICAN CONSTITUTION? - It has to be noted that the attribute which differentiates man from other species is their skill of communication by spoken or written words to express their feelings. This skill is pivotal for the development of any healthy democratic nation and thus has been protected as a fundamental right. The curbing of this right by an internet ban is gross violation of fundamental rights of the citizens. - It is contended that the requirements under the test of proportionality is not fulfilled in the present case. There is no proximate and rational relation between internet shutdown and preventing the protests which had gone out of hand. Such a measure only shows the malafide intention of the State to deprive the citizens of their right to freedom of speech and expression which is harmful for the working of a healthy democracy. [MEMORIAL FOR PETITIONER] Page 12 TLL-Ansal University's 1st National Online Moot Court Competition 2020 word illegal migrants needs to undergo a change and is another important topic of consideration.® c) Under the Foreigners Act, 1946, a foreigner is a person who is not a citizen of Indica. The Government has the power to deport a foreigner without a valid passport. In 2003 and 2009, rules were enacted under the Citizenship Act for preparing an NRC for Indica and for Assam respectively.“In a series of orders thereafter, the Hon’ble Supreme Court issued directions to ensure that the NRC would be updated in Nassam in order to detect and deport illegal migrants in the state.’ It was against this backdrop that the Citizenship (Amendment) Act, 2019 (CAA) was enacted.® Naturalization provided a path to citizenship for those with absolutely no ancestral connection to Indica.’ If Indica acquires any foreign territory, the Central Government can notify persons connected with that territory as citizens of Indica."° Importantly, by virtue of the 2004 amendment, an “illegal migrant” cannot seek citizenship by registration or naturalization." d) The CAA has basically defeated the objective of providing citizenship to those fleeing from persecution by bringing in the religious test for acquiring this citizenship. The entire classification is absolutely arbitrary and wholly unjust. It acts unfairly by excluding from the definition other religions. People of the religions included in the definition are then provided an augmented route to securing citizenship through naturalization, with the prevailing residency requirement reduced from a period of 11 to 5 years. ° Section 2(1)(b), Citizenship Act, 1955, [(b) “illegal migrant” means a foreigner who has entered into India— (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;] *Section 2(a). 100 Section 5, Passport (Entry into India) Act, 1920. The Supreme Court has held that the Foreigners Act vests the central government with an “absolute and unfettered discretion” to “expel foreigners from India”. Hans Muller of Nuremburg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 ? Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1 (paragraph 7) ®Gautam Bhatia, The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer, Indian Constitutional Law and Philosophy, (May. 07, 2017), https://indconlawphil.wordpress.com/2017/05/07/the-constitutional-challen ge-to-s-Ga-of-the-citizenship- act-assam-accord-a-primer/ ° Section 6, Citizenship Act, 1955, Citizenship by naturalisation *© Section 7, Citizenship Act, 1955, Citizenship by incorporation of territory *t Sections 5, Citizenship Act, 1955, Citizenship by registration [MEMORIAL FOR PETITIONER] Page 15 TLL-Ansal University's 1st National Online Moot Court Competition 2020 1.2. VIOLATION OF ARTICLE 14 a) Article 14 is the fundamental right in the Constitution of Indica. In the structure of the Constitution, any law made by the Parliament or the State legislature which happens to encroach on the foundations of any of the fundamental rights will be void, this would include any law made by the Parliament under Article 11. The powers of the law makers are restricted by the text of the Constitution and they have to be abided to. b) The basic characteristics of Article 14 which can be understood by reading the bare text of the Constitution are that Article 14 is a fundamental right and is applicable to every person within the territory of Indica. The Constitution talks about equality which means equal concern and respect to every person. However, people are born with different attributes and differ from one another and so the Supreme Court recognized almost right from the outset that the moral precepts of Article 14’s guarantee demanded an Aristotelian reading: that people equally situated are to be treated alike while people unequally situated are to be treated in an unlike manner . The U.S Supreme Court relied on a doctrine of reasonable classification in the case of Southern Railway Co v Greene.'? While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification,” Justice William R. Day wrote, “must be based upon some real and substantial distinction.” The test has been well defined in the case of Budhan Chaudhary v State of Bihar." The test is said to have two conditions. First, the classification has to be founded on intelligible differentia which goes to say that people who are not in a particular group must be left out and the second that the differentia must have a rational relation to the object that needs to be achieved.'“The classification needs to be made kept in mind the geography, occupation, or the like. There has to be a nexus between the classification made ® Southern Railway Co v Greene, 216 U.S. 400 (1910) *SBudhan Chaudhary v State of Bihar, AIR 1955 SC 191 : (1955) 1 SCR 1045 *Kewal Singh v Lajwanti, 1980 AIR 161, 1980 SCR (1) 854 [MEMORIAL FOR PETITIONER] Page 16 TLL-Ansal University's 1st National Online Moot Court Competition 2020 and the object that is to be considered. Article 14 basically requires the state to divide and make categories and classifications to acquire substantive equality.!° c) The same principle was reiterated in the cases of West Bengal v Anwar Ali Sarkar and Tej Bahadur Singh and Ors v. State of U.P.'° It is important to note that Article 14 strikes at arbitrariness as emphasized in the Maneka Gandhi v Union of India case."” The basic principle of article 14 does not demand that the same laws should apply to all persons. What Article 14 forbids is class legislation. Class legislation is when an improper discrimination is made by giving some benefits to a certain section of the society arbitrarily selected from a large number of persons all of whom are entitled to the privilege granted and if it’s found that there is no reasonable justification for excluding one group and including another as we can see is the matter in the said case. 1.3. BASIC STRUCTURE DOCTRINE a) First propounded in the Indican legal jurisprudence in the great case of Keshvananda Bharti vs. Union of India.’ The doctrine of ‘basic structure’ essentially provides that certain elements, rights and duties under the Indican Constitution are inherent to it. b) Chandrachud, C.J., in the case of Minerva Mills vs. Union of India" stated that ‘the Indican Constitution is founded on the bedrock of the balance between Parts Ill and IV. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution’. c) In the landmark case of S.R. Bommai vs. Union of India”, it was stated that democracy, federalism and SECULARISM are essential features of the Indican Constitution and are part of its basic structure. In the landmark case of Aruna Roy *S Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101: 1991 Supp (1) SCC 600;State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 : 1952 SCR 284;Navtej Singh Johar & Ors v. Union of India, W P (CRIMINAL) NO. 76 OF 2016. *6Tej Bahadur Singh v State of Uttar Pradesh, AIR 1954 All 655 *’Maneka Gandhi v Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248 *8K eshavananda Bharati v State of Kerala, AIR 1973 SC 1461 : (1973) 4SCC 225 * AIR 1980 SC 1789 : (1980) 2 SCC 591 °ATR 1994 SC 1918 (2024) : (1994) 3SCC 1 [MEMORIAL FOR PETITIONER] Page 17 TLL-Ansal University's 1st National Online Moot Court Competition 2020 f) 8) h) i) making it look like the suffering of the migrants who entered post 31 December 2014 is less exacting. The Citizenship Amendment Act also relaxed the residential requirements for religious minorities. Earlier the period of stay in the country prior to acquiring citizenship was 11 years. Now with the Amendment Act, it has been reduced to 5 years. This will again distinguish between different migrants. Only the groups covered by CAA will be allowed the five year exemption rule.” If we were to even consider that the aim of the CAA is to protect those from countries which were part of Pre Partition Indica, then too the classification is not valid due to the inclusion of Afghanistan and the exclusion of Myanmar which was formerly known as Burma. The State has tried to separate religious persecution from any other kind of persecution hence lowering the position of those who have not been persecuted on the basis of their faith. Had Indica been a signatory to the 1951 UN Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, the CAA would fall flat as according to the convention and protocols, the states would have to apply the laws without discrimination as to race, religion or country of origin. In the case of Kedar Nath Bajoria v State of West Bengal”, Chief Justice Shastri held that Article 14 of the Constitution does not require that the classification brought about by legislation be scientifically perfect. This argument can be used by the state to justify the statute. However, Chief Justice Shastri held that the classification has to be based on an intelligible principle. In the said case there is no intelligible differentia as to why all the other groups were excluded. The SOA states that its object is to protect those who have suffered persecution on grounds of religion. When did one religion take precedence over the other? The exclusion of all the above mentioned religions bears no nexus with the object. The fact that Islam is not the state religion in countries like Sri Lanka and Bhutan, if the argument may so be, does not mean that the citizens of the country enjoy the right to exercise any religion of their choice. The relaxation of the residence 8Supra 22 ?*Kedarnath Bajoria v State of West Bengal, AIR 1954 SC 660 [MEMORIAL FOR PETITIONER] Page 20 TLL-Ansal University's 1st National Online Moot Court Competition 2020 requirement for naturalization is also arbitrary. In simple words, why should Christian fleeing from Afghanistan due to religious persecution have an easier route to citizenship as against a Christian from Myanmar? 1.5. VIOLATION OF PRINCIPLES OF INTERNATIONAL LAW a) b) qd) Article 15, Universal Declaration of Human Rights, 1948 (“UDHR”): (1) everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 7, UDHR: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 26, International Convention of Civil and Political Rights, 1966 (‘ICCPR”): All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 51, Part IV (Directive Principles of State Policy), Indican Constitution, 1950: The State shall endeavor to— (a) promote international peace and security; (b) maintain just and honorable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and (d) encourage settlement of international disputes by arbitration. In the great case of Vishaka vs. State of Rajasthan®, the Hon’ble Supreme Court stated that any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and °Vishaka v State of Rajasthan, (1997) 6 SCC 241, AIR 1997 SC 3011 [MEMORIAL FOR PETITIONER] Page 21 TLL-Ansal University's 1st National Online Moot Court Competition 2020 norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Moreover, in the celebrated case of K.S. Puttaswamy vs. Union of India*', the Hon’ble Supreme Court reiterated that Indica being a responsible member of the international community, must adopt an interpretation that abides by the international commitments made by the country, particularly where its constitutional and statutory mandates indicate no deviation. f) Hence, the counsel most humbly submits that the Citizenship Amendment Act is not constitutionally valid. tw P (CIVIL) NO 494 OF 2012 [MEMORIAL FOR PETITIONER] Page 22 TLL-Ansal University's 1st National Online Moot Court Competition 2020 b) °) qd) enabling direct participation in public affairs. They help individuals and groups to express dissent and grievances, to share views and opinions, to expose flaws in governance and to publicly demand that the authorities and other powerful entities rectify problems and are accountable for their actions. The government however treats protests as if it’s a threat to the security that needs to be extinguished instead of seeing it for what it actually is, ie, the freedom of speech and expression and the liberty that an individual can exercise to speak up. The right to protest encompasses within it a series of rights such as the right to freedom of expression, the right to take part in peaceful assembly, the right to question the law makers of the country, the right life, right to privacy and also the right to freedom from discrimination amongst other things. As for the terms peaceful or non-violent, it should include the use of self-defense by protestors against unlawful acts, but the form of self-defense should be no more than necessary.“"The states must also acknowledge that when a protest ends in violence, it was due to the failure of the state to facilitate a peaceful protest. “ The right to association becomes the right to associate for political purposes and to get together to challenge the decisions of the government. Opposition parties, as seen even in this case, are valuable adversaries not enemies who compete for the political power in a healthy manner. The right to protest allows political groups, parties and various university students to question the acts of the government. The Preamble of the Indican Constitution states that Indica is a democratic republic for the reason that Indicans fought long and hard to publicly express their views and opinions. Even in the time before independence, strikes and dharnas were staged so that opinions could be put forth. So how can the freedom to do so now are curbed? Now, the question that arises is whether a state has the right to deny the validity of a protest. In a landmark judgment passed by the Supreme Court on the incident that took place at Ramlila Maidan where Baba Ramdeva and his supporters were “Section 1, Principle 1. 1.2 a, https://right-to-protest.org/wp-content/uploads/2015/06/right-to-protest-for- web.pdf “ Section 1, Principle 1 1.2 d, https://right-to-protest. org/wp-content/uploads/2015/06/right-to-protest-for- web.pdf [MEMORIAL FOR PETITIONER] Page 25 TLL-Ansal University's 1st National Online Moot Court Competition 2020 f) 8) carrying on a protest against black money, the court held that the protest was peaceful. “ The Hon’ble Supreme Court in this judgment has upheld the right to peaceful protest as a Constitutional right and the right to assemble and demonstrate by holding dharnas is the basic features of an effective democratic system. The government has to respect such rights. Political powers use police force time and again to stop these protests and stop people from exercising their fundamental rights. * In a case in 2012, a Delhi Court discharged seven volunteers of Indica who had gathered outside the Prime Minister’s office holding that they had the freedom to assemble peacefully and without arms. This was allowed since it was their basic fundamental right and no one had the right to question it. 2.3. CURRENT SCENARIO a) b) In the current scenario, the bill that was heavily resented by the masses became a full-fledged law.*’There were bound to be repercussions. People would most certainly protest against this unfair act. The students of PMI and KNU came together to protest and even members of the Shislamik community had several sit off protests. None of these were violent. Across the country, people came together to protest against this injustice, however, things escalated only when the police intervened. The police entered the campus of one of the universities and the video of the same became viral. In the present case, the purpose of the people was simply to protest against CAA which is a means of the ruling party to further their agenda. Crowd control is the duty of the police. It is their duty to make sure that there is no nuisance at all. This power is bestowed upon them. But the law is silent on how much power the police can use. This has been left to the discretion of the officers and that is when the misuse happens just like it happened in the case in question. “5 Re-Ramlila Maidan Incident Dt ... v. Home Secretary And Or, SUO MOTU WP (CRL.) NO. 122 OF 2011 “6 Right to Peaceful Assembly, (Aug.27, 2017), http://lawtimesjournal.in/right-peaceful-assembly/ “7 Para 9, Moot Proposition “8 Para 12, Moot Proposition [MEMORIAL FOR PETITIONER] Page 26 TLL-Ansal University's 1st National Online Moot Court Competition 2020 c) Students came together to complain about police officers hauling and beating them up. The violence began when the police unnecessarily attacked first trying to stop the protests, which is a fundamental right of every citizen. Tear smoke and cane were used by the police in the campus. They tore through the campus and images of them doing so have surfaced all over social media. Constant stream of videos of illegal detention, arrests on false charges, open firing on peaceful protests, arson and looting by the police have surfaced. d) Despite the constant pleas of people that they were protesting with women and children in a peaceful manner and despite showing constant evidence that some people were simply documenting the violence instead of starting it, the police did not listen. Students who had nothing to do with protests were attacked brutally too. A group that fights against police repression was also put under house arrest for no reason whatsoever. All this to only shut down the criticism that was coming towards the government. A fact finding team confirmed all the reports and said that the government was using unlawful and lethal tactics against protestors especially those who follow Shislam. This was to send a signal to those who would dare to raise their voice against the Government. e) Terms like anti-nationals and traitors were used to encourage violence against the protestors. The main sit-in protest site was constantly targeted. The Union Ministers and chief ministers also engaged in violent rhetoric with statements like “shoot the traitors”. In addition to the criminalization of peaceful assemblies, the freedom of assembly has also been restricted by burdening civilians with recovering the cost of damages to public property”. It’s not the first time that this particular government administration has been accused of violence. In 2018, Human Rights Watch and the U.N, too, expressed concerns over custodial violence and extrajudicial killings by the police in Uttar Pradesh. A citizen cannot be compelled to relinquish his fundamental right just because the State decides to restrict his right to protest. 2.4. TEST FOR REASONABLENESS “? India: International Communities must condemn crime against those protesting peacefully against discriminatory law, (Mar. 20, 2020), https://amnesty .org.in/news-update/india-international-community- must-condemn-crimes-against-those-protesting-peacefully -against-discriminatory -law/ [MEMORIAL FOR PETITIONER] Page 27 TLL-Ansal University's 1st National Online Moot Court Competition 2020 3.1 VIOLATION OF FUNDAMENTAL RIGHTS (a) VIOLATION OF ARTICLE 14: RIGHT TO EQUALITY 1. The petitioner most humbly submits that the Citizenship Amendment Act, 2019 is violative of Article 14 of the Indican Constitution. 2. Article 14 aims to secure to “all persons”, citizens or non-citizens the right of equality of status and opportunities referred to in the Preamble. This is the underlying object of Article 14. 3. It is submitted that the migrants in Indica are being arbitrarily discriminated against on the grounds of religion, country of origin, nature of persecution they have fled, date of entry into Indica and are being exempt from the enabling provisions of Citizenship (Amendment) Act, 2019 that seeks to make only Sindhu, Sikh, Siddhist, Jain, Parsi and Christianity illegal migrants from Zakistan, Bangladesh and Afghanistan, who entered Indica without valid travel documents on or before December 31, 2014, fleeing religious persecution, eligible for citizenship under the Amendment Act. 4. The Supreme Court has established that Article 14 prohibits the Parliament from enacting laws that arbitrarily or irrationally differentiates between groups of persons. The differentiation to be valid should be founded on “intelligible differentia” and this differentia must have a nexus to the object sought to be achieved by the Act.*’This has also been observed in State of West Bengal v. Anwar Ali Sarkar™. 5. The proclaimed ‘object sought to be achieved’ by the CAA is to accommodate persons (minorities) facing religious persecution in the mentioned States. Minority communities from other nations apart from those mentioned under *5Natural Resources Allocations; In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1 (77) *Spara 8, p.2, Moot Proposition. 57 R.K. Garg v. Union of India, (1981) 4 SCC 675 58 1952 AIR 75, 1952 SCR 284 [MEMORIAL FOR PETITIONER] Page 30 TLL-Ansal University's 1st National Online Moot Court Competition 2020 Section 2 of the CAA, such as from Sri Lanka, Myanmar or Nepal have fled their countries to Indica and other countries due to ethnic and sectarian persecution and not just religious persecution. Various other minority communities in Indica’s neighborhood have suffered severe persecution, not only based on their religious beliefs, but also their race, ethnicity and language. The case of the Tamils in Sri Lanka and Tibetans in China are the most prominent examples. They are being arbitrarily excluded from the provision of the Amendment Act. 6. In Navtej Singh Johar v. Union of India®, the Hon’ble Supreme Court held that negative discrimination by the State on the ground of an intrinsic trait of a person cannot form reasonable classification and is violative of Article 14. 7. The petitioner submits that this Amendment Act, differentiates between illegal migrants only on the basis of religion thereby exempting six religious communities from being illegal migrants and thus eligible for citizenship whereas similarly placed migrants from other religious communities such as Shislamians and Jews will not be able to apply for citizenship through the CAA. 8. The Act excludes multiple communities that are similarly subjected to persecution in neighbouring states, such as Muslim Rohingyas in Siddhist-majority Myanmar, Siddhist Tibetans, Shislamian Uighurs in China, Shislamian minorities in Zakistan, such as Shias and Ahmadis, among others. 9. It is submitted that if the proclaimed objective of the Amendment Act is to accommodate minority communities suffering religious persecution, the distinction on the basis of religion and country of origin is irrational and unjustified. 10. It is submitted that no legislation can be irrational or manifestly arbitrary or without a sufficient determining principle® and hence CAA is violative of Article 14 of the illegal migrants residing in Indica who are excluded from CAA. (b) VIOLATION OF ARTICLE 21: RIGHT TO LIFE & PERSONAL LIBERTY 5? (2018) 10 SCC 1 °F P.Royappa v. State of Tamil Nadu, 1947 4 SCC 3 [MEMORIAL FOR PETITIONER] Page 31 TLL-Ansal University's 1st National Online Moot Court Competition 2020 11. 12. 13. 14. It is also submitted that the Citizenship Amendment Act also violates Article 21 of the Constitution of Indica. It violates the right to live with dignity of individuals who are not covered under the special dispensation of the Amendment Act, solely on the basis of their membership to a particular religion. Article 21 guarantees to “all persons” life and personal liberty which includes the right to live with human dignity and all that goes with it and Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to life and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.“ Religious discrimination is a violation of human dignity. Therefore, it is submitted that Amendment Act practices discrimination and violates human dignity which is consequently an infringement of right to life of the migrants who are excluded for the CAA. 3.2 NON FULFILMENT OF DIRECTIVE PRINCIPLES OF STATE POLICY 1. a) ARTICLE 38 It is submitted that the State has failed to fulfill its obligation under Article 38 of the Indican Constitution. It is the obligation of the State, under Article 38, to strive to promote the welfare of people and securing social order. There is an obligation upon the State to bring about, through the machinery of law, an equal society envisaged by the Preamble and Part IV of the Constitution i.e. a society contemplated by Article 38. Article 38 is not the only Article that refers to justice, social, economic and political, Article 14 guarantees the fundamental right to equality without which “Francis Coralie Mullin v. The Union Territory of Delhi , 1981 1 SCC 608 Sri Srinivasa Theatre v. Government of Tamil Nadu, AIR 1986 SC 999 [MEMORIAL FOR PETITIONER] Page 32 TLL-Ansal University's 1st National Online Moot Court Competition 2020 It is contended before the Hon’ble court that the Internet ban by various states is a violation of Article 19 of the Constitution of Indica. 4.1. RIGHT TO SPEECH & EXPRESSION UNDER ARTICLE 19 (1) a. The backlash of a discriminatory bill which received the President's assent resulted in a mass movement by the citizens. They resorted to getting on the streets and raising their concerns in order to be heard by the authorities. To curb this widespread protest, various states resorted to making arbitrary use of their power and ordered an internet ban to put an end to receiving and sharing of communication and information of the citizens. b. It has to be noted that the attribute which differentiates man from other species is their skill of communication by spoken or written words to express their feelings. This skill is pivotal for the development of any healthy democratic nation and thus has been protected as a fundamental right. The curbing of this right by an internet ban is gross violation of fundamental rights of the citizens. Article 19 (1) (a) of the Constitution of Indica confers on the citizens of Indica the right “to freedom of speech and expression”. The freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. c. Freedom of speech and expression plays a crucial role in the formation of public opinion on social, political and economic matters. It has been internationally recognized that this freedom of speech and expression and the right to information go hand in hand. Article 19 of the Universal Declaration of Human Rights states: Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Similarly, Article 19 (2) of the International Covenant on Civil and Political Rights has recognized the same. 4.2. INTERNET AND FREEDOM OF SPEECH & EXPRESSION [MEMORIAL FOR PETITIONER] Page 35 TLL-Ansal University's 1st National Online Moot Court Competition 2020 a. The expression of speech and expression in Article 19 (1) (a) has been held to include the right to acquire information and disseminate the same. It includes the right to communicate it through any available media whether print or electronic. In recent times, the internet has become a vital source through which individuals can express their views and receive information. The UN Human Rights Committee has tried to give practical application to freedom of opinion and expression in the radically altered media landscape, the center stage of which is occupied by the internet and mobile communication. b. The development of the jurisprudence in protecting the medium of expression can be traced to a number of judgments by the Hon’ble Supreme Court starting from Romesh Thappar v State of Madras® where it was held that freedom of speech is the foundation of democratic organizations. Later, Indian Express v. Union of India®, wherein the Hon’ble court declared that the freedom of print medium is covered under freedom of speech and expression. In the case of Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana’’it was held that the right of citizens to exhibit films on Doordarshan, subject to the terms and conditions to be imposed by the Doordarshan, is a part of the fundamental right of freedom of expression guaranteed Under Article 19(1) (a), which can be curtailed only under circumstances set out Under Article 19(2). c. Further, the Hon’ble Supreme Court expanded this protection to the use of airwaves in the case of the Secretary, Ministry of Information & Broadcasting, and Government of India”'. In this context, it shall be noted that in a catena of judgments, it has been recognized that free speech is a fundamental right, and, as technology has evolved, has recognized the freedom of speech and expression over different media of expression. d. Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. This has been reiterated by the Hon’ble 67«Freedom of Expression and New Media” http://www.ohchr.org/EN/NewsEvents/Pages/FreedomExpressionandnewmedia.aspx “ATR 1950 SC 124 £91986 AIR 515, 1985 SCR (2) 287 7°(1988) AIR SC 1642 7*ATR 1995 SC 1236 : (1995) 2 SCC 161 [MEMORIAL FOR PETITIONER] Page 36 TLL-Ansal University's 1st National Online Moot Court Competition 2020 Supreme Court in the case of Anuradha Bhasin & Ors v. Union of India”, that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoy constitutional protection under Article 19(1) (a) and Article 19(1) (g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19(2) and (6) of the Constitution, inclusive of the test of proportionality. 4.3. TEST OF PROPORTIONALITY a. As protests against the newly amended act escalated in several cities, the invocation of an internet ban does not seem to be in conformity to the general rule that such a restriction on fundamental freedoms should be reasonable, least invasive and bona fide. The duty of a state to preserve public order should never extend to the suppression of political views contrary to those of the government. Restrictions wider than necessary tend to suppress rather than regulate. b. With recent advances in telecommunication technology and its increasing availability to the masses at low costs, globally speaking, the internet in the past few years has become a great enabler for people to exercise various fundamental rights. A restriction on the access of the internet should strike a proper balance between the freedoms guaranteed. The inability of the state to maintain public order shall not be covered under the act of a blanket ban on the fundamental rights of its citizens. c. It is understood that reasonable restriction provided under Article 19 (2) of the Constitution of Indica are indispensable for the realization of freedoms enshrined, as they are what ensure that enjoyment of these rights is not arbitrary or excessive, so as to affect public interest”*. However, the restriction imposed must have a reasonable and rational relation with the public order, security of state, etc. In the interest of public order there cannot be arbitrary use of power by state”. ”(WP(C) 1031/2019] ’S Chintaman Rao v. State of MP, AIR 1951 SC 118 : 1950 SCR 869 NK Javali v. State of Mysore, AIR 1966 SC 1387 : (1962) 1 LLJ 134 [MEMORIAL FOR PETITIONER] Page 37