Written Submission for the Petitioners

TEAM CODE: 13P

2ND VOX ANATOLIS NATIONAL MOOT COURT COMPETITON 2020

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY ASSAM

IN THE SUPREME COURT OF ZEDELLIN

ORIGINAL JURISDICTION

WRIT PETITION NO. …..OF 20…

MR. KUSTAVO KAVIRIA ….……………PETITIONER

VS.

UNION OF ZEDELLIN ………………. RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITONER

ON SUBMISSION TO THIS HONOURABLE SUPREME COURT OF ZEDELLIN

Part A: Preliminaries Page i

 Written Submission for the Petitioners

INDEX

LIST OF ABBREVIATIONS ............................................................................................... iii

INDEX OF AUTHORITIES ................................................................................................. v

STATEMENT OF JURISDICTION .................................................................................... vii

SYNOPSIS OF FACTS...................................................................................................... viii

STATEMENT OF ISSUES .................................................................................................. ix

SUMMARY OF ARGUMENTS ........................................................................................... x

BODY OF ARGUMENTS .................................................................................................... 1

I. THAT THE COGNIZANCE OF LETTER WRITTEN TO THE SUPREME

COURT IS MAINTAINABLE ........................................................................................ 1

(A)Right to move to the supreme court through appropriate proceedings. ....................... 1

(B) Epistolary jurisdiction of the supreme court. ............................................................ 2

(C) Cognisance of letter written as PIL........................................................................... 4

II. THE NRC EXERCISE CONDUCTED IN XINALOA BY CENTRAL

GOVERNMENT OF ZEDELLIN CAN BE SCRAPPED ON THE BASIS OF
CONSTITUTIONAL MORALITY. ............................................................................... 5

(A) That should the concept of constitutional morality should be applied in this case. ... 5

(B)That Constitutional Morality be used as a guiding principle for Constitutional

Interpretation. ................................................................................................................ 7

III. THAT THE FOREIGNERS ORDER 2016 IS UNCONSTITUTIONAL. .............. 8

(A) Violation of basic human and fundamental rights ..................................................... 8

(B) Contravention of provisions of International treaties and conventions. ................... 10

PRAYER ............................................................................................................................ 13

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 Written Submission for the Petitioners

LIST OF ABBREVIATIONS

& And

¶ Paragraph

¶¶ Paragraphs

AIR All India Reporter

AP Andhra Pradesh

Art. Article

Assn. Association

Bom Bombay

Cal Calcutta

CONST. Constitution

ed. Edition

Govt. Government

Id. Ibidium

In re: In Reference

Ker Kerala

Ltd. Limited

Mad Madras

No. Number

Ori Orissa

Ors. Others

p. Page

Part A: Preliminaries Page iii

 Written Submission for the Petitioners

P.C Privy Council

SC Supreme Court

SCC Supreme Court Cases

Sd/- Signed

UCC Uniform Civil Code

UP Uttar Pradesh

v. Versus

Vol. Volume

Part A: Preliminaries Page iv

 Written Submission for the Petitioners

INDEX OF AUTHORITIES

CASES

1. A.K Gopalan v. State of Madras, AIR 1950 SC 27..................................................... 2

2. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.................................... 1
3. Bodhidsattawa Gautam v. Subhra Chakraborty, AIR 1996 SCC 922 .......................... 2
4. Chairman Railway Board and others v. Chandrima Das, 2 SCC 465 2000. ................ 9
5. D.K. Basu v. State of W.B, AIR 1997 SC 610. .......................................................... 5
6. Gideon v. Wainright, (1963) 372 U.S. 335 ................................................................. 3
7. Hussein v. Chong Fook Kam [1970] AC 942, at pp. 948-49....................................... 2
8. J.P. Unnikrishnan and others v. The State of Andhra Pradesh, SCC (1) 645 1993 ...... 9
9. Janata Dal v. H.S. Chowdharv, [1976] SC 1455 (AIR). .............................................. 3
10. Jolly George Varghese v. Bank of Cochin, SCR (2) 913 1980 ................................. 10
11. Jose Jacob vs. State of Kerala .WP (C). No. 2644 of 2014 (E).................................... 7
12. Kamgar Sabha v. Abdul Bhai, [1976] SC 1455 (AIR). ............................................... 3
13. Kamgar Union v. Union of India, [1981] SC 344 (AIR) ............................................. 3
14. Kochunnii v. State of Madras, AIR 1959 SC 725 (729). ............................................. 2
15. M.C Mehta v. Union of India , (1987) 1 SCC 395 ...................................................... 1
16. Maneka Gandhi vs Union of India, SCR (2) 621 1978. .............................................. 9
17. Manoj Narula(II) v. Union of India, (2005) 7 SCC 51 ................................................ 6
18. Mohan Lal Sharma v. State of U.P., (1989) 2 SCC 600 .............................................. 2
19. Mrs.Nilima Priyadarshani v. State of Bihar, AIR 1987 SC 2021. ............................... 5
20. Mumbai Kamgar Sabha v. Abdulbhai, (1976) 3 SCC 832 .......................................... 3
21. Neelabati Behra v. State of Orissa,1993 AIR 1960, 1993 SCR (2) 581. ...................... 5
22. NHRC v. State of Arunachal Pradesh, 1 SCC 742 1996 ............................................. 9
23. People’s Union of Democratic Right and ors. v. Union of India (1983) 2 SCC 308 .... 4
24. People’s Union of Democratic Right, v. Union of India AIR 1982 SC 1473. .............. 4
25. Sunil Batra v. Delhi Administration, 1980 AIR 1579, 1980 SCR (2) 557. .................. 2

TREATISES

1.Article 15, Universal Declaration of Human Rights, December 10, 1948. ................... 12
2.Convention on the Reduction of Statelessness, August 30, 1961 ................................. 12
3.Convention relating to the Status of Stateless Persons, September 20, 1948 ................ 12

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 Written Submission for the Petitioners

4.International Covenant on Civil and Political Rights, December 16, 1966................... 10

5.The International Convention on the Elimination of All Forms of Racial
Discrimination,November 20, 1963 ............................................................................... 11
6.UN Convention on the Rights of Children, November 30, 1989. ................................. 11

BOOKS

1. Dr. Mamta Rao, Public Interest Litigation Legal Aid and Lok Adalats, 3rd edn.
(Lucknow: Eastern Book Company 2010), p.259. ...................................................... 3
2. Sangeeta Ahuja, People, Law and Justice: Cases and Materials on PIL Orient Longman,
Delhi, 1996, Vol. II, 860. ........................................................................................... 5
3. V.N. Shukla, Constitution of India, 13th edition, 2017. .............................................. 1

CONSTITUTIONAL PROVISIONS

Article 32(1) ......................................................................................................................... 1

LINKS

UNHCR, What would life be like if you had no nationality?, March 1999,
http://docplayer.net/322338-What-would-life-be-like-if-you-had-nonationality.html, 3. .. 12

Part A: Preliminaries Page vi

 Written Submission for the Petitioners

STATEMENT OF JURISDICTION

The Petitioners have invoked the jurisdiction of the Supreme Court of Zedellin under Article

32 of the Constitution of Zedellin, 1950.

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 Written Submission for the Petitioners

SYNOPSIS OF FACTS

I. The present case which lies here before the Supreme Court of Zedellin concerns a PIL filed
by petitioner in the form of letter against the Government of Zedellin (Defendant) claiming
violation of basic human rights of the detained foreigners. Zedellin is third world country
and Quasi-federal state and divided into 10 federal units. Xinaloa was one of these units
located in south-east corner of Zedellin. Xinaloa being in the south-eastern corner shared
the international border with Tescobar, which was also a third world Country.
II. Both Tescobar and Zedellin became independent around the same time. After the
independence Zedellin reached a new height of progress and development, while
Tescobar’s Economy suffered and nosedived in the abyss. As a result, the Citizens of
Tescobar starting immigrating into the Zedellin state of Xinaloa, around the year 1971.
Within 20 years the illegal immigrants Comprised 20% of the population.
III. Due to the above fact, People of Xinaloa protested against the anti-immigration protest. All
Xinaloa Student’s Union became the centre of this protest. Due to this protest the state
assembly election were boycotted twice. In the year 2010, Jitendra Lodhi became the Prime
Minister of Zedellin. To end the impasse in the Xinaloa and for the betterment of its people,
he declared the National Register of Citizens (NRC) would be made up in Xinaloa. The
NRC was challenged in the Supreme Court of Zedellin. The Court upheld its legality.
IV. On 5th August 2016, the Union Government of Zedellin declared that a total of 6,89,131
were Declared as National Foreigners of Xinaloa (DFNX) after they had exhausted all
the Judicial remedies available to them to prove their Citizenship. The DFNX were Shifted
to the Prisons across Zedellin by the virtue of the Foreigner’s Order, 2016. 6,79,042
Foreigners were scattered across prison in Zedellin, waiting for deportation Process.
Although Tescobar had categorically stated that none of its Citizen ever infiltrated into
Zedellin.
V. In the Meanwhile, Mr. Kustavo Kaviria, a convicted criminal who was lodged in the Triganj
jail wrote a letter to the SC of Zedellin Claiming violation of basic Human rights against
the Government of Zedellin in its treatment of the detained foreigners. Invoking its
epistolary Jurisdiction SC took Cognizance of the letter and sent notice to the Government
of Zedellin to appear before it.

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 Written Submission for the Petitioners

STATEMENT OF ISSUES

ISSUE I

WHETHER THE SUPREME COURT OF ZEDELLIN SHOULD HAVE TAKEN THE

COGNIZANCE OF LETTER OR NOT BY INVOKING ITS EPISTOLARY
JURISDICTION.

ISSUE II

WHETHER THE NRC EXERCISE CONDUCTED IN XINALOA BY CENTRAL

GOVERNMENT OF ZEDELLIN CAN BE SCRAPPED ON THE BASIS OF
CONSTITUTIONAL MORALITY OR NOT.

ISSUE III

WHETHER THE DETENTION OF “DECLARED FOREIGN NATIONALS FROM

XINALOA [DFNX]” ON THE BASIS OF FOREIGNERS ORDER2016 IS
UNCONSTITUTIONAL OR NOT.

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 Written Submission for the Petitioners

SUMMARY OF ARGUMENTS

A. THAT THE COGNIZANCE OF LETTER WRITTEN TO THE SUPREME

COURT IS MAINTAINABLE.
The appeal by letter by the petitioner is maintainable before this Supreme Court of
Zedellin because it involves the Substantial question of law and also the petitioner are
aggrieved party. The cognizance of the letter is correct by the virtue of the Art. 32 of the
Indian Constitution, 1950 in which the rule of locus standi has been liberalized by the
supreme Court of Zedellin in many cases by invoking its epistolary jurisdiction. The
present enactment of the National Register of Citizenship and Foreigner’s Order is
violative of fundamental and basic human rights of the Declared National foreigners who
have been detained in the prisons across the Zedellin. Also, the foreigners have been
maltreated in the detention centre. The letter should be converted into writ petitions on
the logic that Article 32 of the Constitution does not say as to “who” shall have the right
to move the Supreme Court, nor does it say by “what” proceedings. Therefore, the
cognizance of the letter written by Mr. Kustavo Kaviria is maintainable before this
supreme court of Zedellin.
B. THE NRC EXERCISE CONDUCTED IN XINALOA BY CENTRAL
GOVERNMENT OF ZEDELLIN CAN BE SCRAPPED ON THE BASIS OF
CONSTITUTIONAL MORALITY.
The NRC exercise contravenes the spirit of humanity which is the cornerstone of the
ideas of the formation of Zedellin. It is driven by a spirit of ultra-nationalism and is
unjust, unfair and unreasonable. The NRC exercise negates the constitutional morality,
as it detains human beings in dire state without having a clear path of their future. The
collective conscience of the people denies such treatment of human beings. The
Government claims to have passed the NRC with the Supreme Court upholding the
legality of the NRC exercise, it has to still pass the test of constitutional morality and
constitutional legitimacy, which it does not. So, the counsel contends that Constitutional
morality should be applied to strike down the NRC exercise, as it has to be used as a
guiding principle for Constitutional Interpretation.
C. THAT THE DETENTION OF THE DECLARED NATIONAL FOREIGNERS
UNDER THE FOREIGNERS ORDER 2016 IS UNCONSTITUTIONAL.
The foreigner’s order violates basic human rights that are held universally inviolable. The
Foreigner’s order is also violative of the fundamental rights afforded to not just citizens but

Part A: Preliminaries Page x

 Written Submission for the Petitioners

any person residing in the territory of Zedellin. The right to life under article 21 of the
constitution has been violated that holds that no person can be deprived of his personal
liberty except according to procedure established by law. The foreign nationals were
detained in prisons in living conditions that are not humane. They are stopped from
practicing their livelihood, from living their lives without meaning or dignity. The right to
life also provides persons with right to live with dignity. Also, apart from the blatant
violation of domestic laws, there are several international treaties whose provisions are not
met or are violated by this order. The courts on many occasions by accepting the rule of
judicial construction have held that regard must be paid to International Conventions and
norms for constructing domestic law.

Part A: Preliminaries Page xi

 Written Submission for the Petitioners

BODY OF ARGUMENTS

I. THAT THE COGNIZANCE OF LETTER WRITTEN TO THE SUPREME

COURT IS MAINTAINABLE

1. The petitioners have approached before this Supreme Court under article 32 of the Zedellinn
constitution. The letter preferred by the petitioner is maintainable under (A) Article 32(1)
provides for the right to move the Supreme Court by appropriate proceedings for the
enforcement of the fundamental rights. (B) Epistolary jurisdiction of the supreme court. (C)
Cognisance of letter written as a writ.

(A)Right to move to the supreme court through appropriate proceedings.

2. The counsel on behalf of the petitioner claims before this Hon’ble Supreme Court of Zedellin
that the right to move to the supreme court guaranteed in Art. 32(1)1 can be exercised only
through the “appropriate proceedings”2. The court found out the meaning of “appropriate
proceedings” with reference to clause (2) of Art. 32.
3. Acting on letters written by or on behalf of the oppressed people is a strategy adopted by the
Supreme Court for facilitating access to justice. This is known as ‘epistolary jurisdiction.’
The letters have been converted into writ petitions on the logic that Article 32 of the
Constitution does not say as to “who” shall have the right to move the Supreme Court, nor
does it say by “what” proceedings.
4. “Even a letter addressed by him to the court can legitimately be regarded as an ‘appropriate
proceedings’”.3 The expression “appropriate proceedings” is too wide, and so moving the
court through a letter can be appropriate proceedings because it would not be right to expect
a person acting pro bono public to incur expenses from his pocket for having a regular writ
petition prepared by a lawyer. It has to be appropriate not in terms of any particular form,
but appropriate with reference to the purpose of the proceeding.4 The letter need not to be
any particular form nor need it to be addressed to the chief justice or to the court.5 Therefore,
Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of
fundamental right and it has the power to issue any process necessary in a given case.

1
INDIA CONST. art. 32(1)
2
V.N. Shukla, Constitution of India, 13th edition, 2017.
3
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802, 813-14.
4
Ibid.
5
M.C Mehta v. Union of India , (1987) 1 SCC 395: AIR 1987 SC 1086.

1
 Written Submission for the Petitioners

Accordingly, letter in any forms including postcards and telegrams addressed to any judge
have been entertained as appropriate proceedings.6
5. The counsel on behalf of the petitioner claims that in order to invoke the jurisdiction under
art. 32, it is not necessary that the person who is victim of violation of fundamental rights
should personally approach the court as this court itself can take cognizance of matter and
proceed suo motu or on petition of any public spirited individual.7 Also uber this Art. the
supreme court can be approached for a suitable relief only in respect of infringement of
fundamental rights.8
6. The counsel further contends that the right to move to the SC where a fundamental right has
been infringed is itself a fundamental right.9 Also in Sunil Batra v. Delhi Administration10
the Supreme Court accepted a letter written by one Sunil Batra, a prisoner from Tihar Jail
complaining inhuman torture by the Jail Warden to another prisoner serving life term in the
same jail. The Court treated the letter as Writ Petition under Article 32 of the Constitution.
Delivering the judgement, the Court issued directions inter alia for taking suitable action
against the erring official.
7. In the present case also, Mr. Kustavo Kaviria, a convicted criminal who is lodged in the
Triganj Jail of Tinajpur District of West Tengal state wrote a letter to the supreme court of
zedellin, claiming violation of basic human rights and fundamental rights of the detained
foreigners. He was supposedly moved by the inhuman treatment meted out to the foreign
detainees who were incarcerated in the same jail. Hence the letter written by Mr. Kustovo
Kaviria is maintainable as a writ petition under article 32(1)11 because it was not appropriate
with any particular form but it was appropriate with reference to the purpose of the
proceeding.12

(B) Epistolary jurisdiction of the supreme court.

8. Lord Devlin has said that “If our methods were as antiquated as our legal methods, we should
be a bankrupt country.”13 The traditional method of initiating proceedings in the court is by
filing a petition containing the facts giving rise to a legal action. This is true in customary

6
Mohan Lal Sharma v. State of U.P., (1989) 2 SCC 600.
7
Bodhidsattawa Gautam v. Subhra Chakraborty, AIR 1996 SCC 922.
8
A.K Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCJ 174.
9
Kochunnii v. State of Madras, AIR 1959 SC 725 (729).
10
Sunil Batra v. Delhi Administration, 1980 AIR 1579, 1980 SCR (2) 557.
11
INDIA CONST. art. 32(1).
12
Supra note 3.
13
Hussein v. Chong Fook Kam [1970] AC 942, at pp. 948-49.

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 Written Submission for the Petitioners

proceedings before the judiciary. However, in cases of PIL judiciary has departed from these
conventional procedural shackles, it has liberalized the adversarial procedure with the change
in the character and functions of the State. The flexibility of procedure can best be illustrated
by what is termed as ‘epistolary jurisdiction’.
9. The counsel claims that the American Supreme Court’s decision in Gideon v.
Wainwright14, where a postcard from a prisoner was treated as a petition, the Supreme Court
adopted the innovative methods to provide justice, liberalized the rule of locus standi and
treated the letter as writ. If there is a conflict between the law of procedure ad substantive
rights of the parties, the latter prevails as the ultimate end of law is justice.15
10. The letters have been converted into writ petitions or PIL on the logic that Article 32(1) of
the Constitution does not mention that ‘who’ shall have the right to move the Supreme Court,
nor does it mention that by ‘what’ proceedings.16 The expression ‘appropriate proceedings’
is too wide, and so moving the Court through a letter can be appropriate proceedings because
it would not be right to expect a person acting pro bono public to incur expenses for having
a regular writ petition prepared by a lawyer. I have to be appropriate not in terms of any
particular form, but appropriate with reference to the purpose of the proceedings.17
11. The concept of public interest litigation evolved in India by Justice Krishna Iyer in 1976 in
Mumbai Kamgar Sabha v. Abdul Bhai.18 However, in that Judgement Justice Iyer did not
use the terminology “Public Interest Litigation”. But in the celebrated case of Fertilizer
Corporation Kamgar Union v. Union of India,19 the terminology “Public Interest Litigation”
was used by Justice Iyer. In this particular judgement he used the expression ‘Epistolary
Jurisdiction’.20 The Hon’ble Supreme Court held that the procedure had to be relaxed to
meet the ends of justice. Therefore, by invoking its epistolary jurisdiction of the Supreme
Court of Zedellin took cognisance of letter written by Mr. Kustavo Kaviria
12. Public interest litigation means a legal action initiated in a Court of law for the enforcement
of public interest or general interest in which the public or a class of the community have
pecuniary interest or some interest by which their legal rights or liabilities are affected. 21 In

14
Gideon v. Wainright, (1963) 372 U.S. 335.
15
Dr. Mamta Rao, Public Interest Litigation Legal Aid and Lok Adalats, 3rd edn. (Lucknow: Eastern Book
Company 2010), p.259.
16
INDIA CONST. art. 32(1).
17
Supra note 3.
18
Kamgar Sabha v. Abdul Bhai, [1976] SC 1455 (AIR).
19
Kamgar Union v. Union of India, [1981] SC 344 (AIR).
20
Mumbai Kamgar Sabha v. Abdulbhai, (1976) 3 SCC 832: AIR 1976 SC 1455.
21
Janata Dal v. H.S. Chowdharv, [1976] SC 1455 (AIR).

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 Written Submission for the Petitioners

the case of Peoples Union of Democratic Rights and other vs Union of India22, and Sheela
Barse vs the State of Maharashtra and in many other cases after the case of Bandhua Mukti
Morcha, the Supreme Court of India not only recognized the Epistolary Jurisdiction of the
superior courts of India but also made this informal way of initiation of writ proceeding in
the Supreme Court institutional, especially when the question of upholding the Human
Rights of poor came before the court.

(C) Cognisance of letter written as PIL.

13. PIL acquired a new dimension – namely that of ‘epistolary jurisdiction’ with the decision in
the Sunil Batra v. Delhi Administration. It was initiated by a letter that was written by a
prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal
assault committed by a Head Warder on another prisoner. The Court treated that letter as a
writ petition. This practice was endorsed by Bhagwati J., in Kadra Pahadiya.23That the letters
have been converted into writ petitions on the logic that Article 32(1) of the Constitution
does not specify ‘who’ shall have the right to move the Supreme Court, nor does it specify
by ‘what’ proceedings. The expression ‘appropriate proceedings’ is too wide and so moving
the Court through a letter can be appropriate proceedings because it would not be right to
expect a person acting pro bono public to incur expenses for having a regular writ petition
prepared by a lawyer.
14. In Upendra Baxi v. State of U.P.24, a letter by two Professors of Delhi University seeking
enforcement of the constitutional rights of the inmates of Protective Home in Agra living in
inhuman and degrading conditions in violation of Article 21 was treated as a writ petition
and accordingly a direction was issued to the concerned authority. Likewise, in People’s
Union for Democratic Rights v. Union of India25, the Court has opined that, “where a person
or class of persons to whom legal injury is caused, any member of the public acting bona
fide and not out of any extraneous motivation may move the Court for judicial redress of the
legal injury or wrong suffered by such person or class of persons and the judicial process
may be set in motion by any public spirited individual or institution even by addressing a
letter to the Court.”

22
People’s Union of Democratic Right and ors. v. Union of India (1983) 2 SCC 308.
23
Kadra Pahadiya v. State of Bihar, AIR 1982 SC 1167.
24
Supra note 22.
25
People’s Union of Democratic Right, v. Union of India AIR 1982 SC 1473.

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 Written Submission for the Petitioners

15. Judiciary gradually admitted that there may also be cases where even letter addressed for
redressal of a wrong done to an individual may be treated as a Writ Petition where the
Supreme Court or the High Court considers it expedient to do so in the interest of justice26.
This is a welcome step. This is an innovative strategy which has been evolved by the
Supreme Court for the purpose of providing easy access to justice to the weaker sections of
Indian humanity and it is a powerful tool in the hands of public spirited individuals and social
action groups for combating exploitation and injustice and securing for the under privileged
segments of society their social and economic entitlements. It is a highly effective, weapon
in the armoury of the law for reaching social justice to the common man.
16. Neelabati Bahera v. State of Orissa27 in which the Supreme Court had held that prisoners and
detenues are not denuded of their Fundamental Rights under Article 21 and only such
restriction as permitted by law could be imposed on the enjoyment of the Fundamental Rights
of the prisoners and detenues and. also that the letter be treated as a Writ Petition within the
“Public Interest Litigation” Category28. Considering the importance of the issues raised in
the letter, it was treated as a Writ Petition and notice was served to the Respondents.
17. The Supreme Court, on its administrative side, issued a notification on what matters could
be entertained as PIL. Under this notification, letter petitions falling under certain categories
alone would be ordinarily entertained such as letter or petition from the prisoners.29

II.THE NRC EXERCISE CONDUCTED IN XINALOA BY CENTRAL

GOVERNMENT OF ZEDELLIN CAN BE SCRAPPED ON THE BASIS OF
CONSTITUTIONAL MORALITY.

1. The Counsel on behalf of the Petitioner contend that the concept of constitutional morality
be applied in the case regarding striking down the NRC exercise. To provide the foundation
for the above-mentioned argument two sub-issues have been developed: A. Why should the
concept of constitutional morality should be applied in this case? B. Should Constitutional
Morality be used as a guiding principle for Constitutional Interpretation?

(A) That should the concept of constitutional morality should be applied in this case.

26
Mrs.Nilima Priyadarshani v. State of Bihar, AIR 1987 SC 2021.
27
Neelabati Behra v. State of Orissa,1993 AIR 1960, 1993 SCR (2) 581.
28
D.K. Basu v. State of W.B, AIR 1997 SC 610.
29
Sangeeta Ahuja, People, Law and Justice: Cases and Materials on PIL Orient Longman, Delhi, 1996, Vol. II,
860.

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 Written Submission for the Petitioners

2. Democracy, which has been defined as the government of the people, by the people and for
the people, expects prevalence of genuine orderliness, positive propriety, dedicated
discipline, and sanguine sanctity by constant affirmance of constitutional morality which is
the pillar stone of good governance.30The state of Zedellin is a democracy therefore it is right
to affirm that constitutional morality is an essential part of the values of the country.
3. Commitment to constitution is a facet of constitutional morality. Thus, institutional
respectability and adoption of precautions for the sustenance of constitutional values would
include reverence for the constitutional structure.31 The NRC exercise might be correct in
abiding by the constitutional laws but it is severely violating the constitutional values due its
nature of segregating and separating humans. It is always possible to remember that a
Constitution is “written in blood, rather than in ink”. 32
4. The sacred document of constitution in a democratic, socialist and secular country like ours
has been enacted to inculcate the constitutional conscience and constitutional orality in all
subjects of the State.
5. When there is a violation of the fundamental rights, the term 'morality' naturally implies
constitutional morality and any view that is ultimately taken by the Constitutional Courts
must be in conformity with the principles and basic tenets of the concept of this constitutional
morality that gets support from the Constitution.
6. Even if the Government claims to have committed the act with the Supreme Court upholding
the legality of the NRC exercise, it has to still pass the test of constitutional morality and
constitutional legitimacy because the Preambular goals of our Constitution which contain
the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through
the commitment and loyalty of the organs of the State to the principle of constitutional
morality.
7. “collective sensibility respects such suffering as it is in consonance with the constitutional
morality”. 33 The NRC exercise has put the life and future of the detained prisoners in
jeopardy and there is no foreseeable future for them since the state of Tescobar has
categorically stated that none of its citizens have ever infiltrated into Zedellin.
8. “unwarranted elements or persons who are facing charge in certain category of offences may
thwart or hinder the canons of constitutional morality and eventually diminish constitutional

30
Manoj Narula(II) v. Union of India, (2005) 7 SCC 51.
31
Id
32
Manoj Narula(II) v. Union of India, (2005) 7 SCC 51.
33
Id

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 Written Submission for the Petitioners

trust”. 34 The law-making spirit of the NRC exercise is deemed to deprive humans of
humanity and seems to be driven by a spirit of ultra-nationalism to detain illegal immigrants,
which seems to hinder the spirit of constitutional morality and the constitutional values
enshrined in the constitution.
9. Every person, including the petitioners looks to the Government as their or its savior.35 The
State of Tescobar had stated that none of its citizens had ever infiltrated into Zedellin. This
leaves the detained prisoners in jeopardy as there seems no future for them as the country,
they were claimed to belong to is not ready to accept them.
10. The idea of humanity which is the cornerstone of the of several great ideas of the
Constitution, is absent in the NRC. The NRC seems to be driven by a spirit of ultra-
nationalism.
11. There is no room for the Government to take shelter under a technical plea - it is against the
constitutional morality of the nation, the State.36The Government of Zedellin’s claim that the
detained prisoners will be deported to Tescobar, without mentioning a specific timeline is a
technical excuse which will further the sufferings of the prisoners to an unlimited period of
time.

(B)That Constitutional Morality be used as a guiding principle for Constitutional

Interpretation.

12. Under Article 22, clause 7(b) of the Constitution of Zedellin, Parliament may by law
prescribe the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention. The time period for detention has
not been set/affirmed and this fact does not adhere to the provisions of the article.
13. Article 14 of the Constitution of Zedellin falls in part III of the Constitution and is essential
ingredient of the fundamental rights. Article 14 in essence projects constitutional conscience
and constitutional morality and strikes at the very root of arbitrariness, unreasonableness and
unfairness. The method in which the foreigners have been detained and treated is
unreasonable and unfair in nature, them being foreigners does not curtail them the Right to
Equality granted under Article 14 of the Constitution.

34
Id
35
Jose Jacob vs. State of Kerala .WP (C). No. 2644 of 2014 (E).
36
Id

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 Written Submission for the Petitioners

14. According to Article 21 of the Constitution, no person shall be deprived of his life or personal
liberty except according to procedure established by law. This article applies to all persons
in the State of Zedellin, and this very right has been taken away by the NC. The procedure
established by law curtails the rights of the immigrants, which is one of the very ideals
supported by the constitution.

III.THAT THE FOREIGNERS ORDER 2016 IS UNCONSTITUTIONAL.

1. The foreigner’s order is unconstitutional as it violates several articles of the Zedellin

constitution in pursuit of achievement of its object. (A) The foreigner’s order violates basic
human rights that are held universally inviolable. The Foreigner’s order is also violative of the
fundamental rights afforded to not just citizens but any person residing in the territory of
Zedellin. Further, it is also in (B) contravention of several provisions of various international
treaties and conventions.

(A) Violation of basic human and fundamental rights

2. Fundamental rights differ from ordinary rights in the sense that the former is inviolable. No
law, ordinance, custom, usage, or administrative order can abridge or take them away. Any
law, which is violative of any of the fundamental right, is void. In a case, Justice Beg observed”
the object of making certain general aspects of rights fundamental is to guarantee them against
illegal invasion of these rights by executive, legislative, or judicial organ of the State” 37. Chief
Justice Subba Rao also had rightly observed, ”Fundamental rights are the modern name for
what have been traditionally known as natural rights.”38 The entire NRC process has left the
future of about 7 lakh people in disarray and rendered their future, their nationality and their
identities uncertain, some of which might even be due to clerical errors such as misspelling of
name or typographical errors i.e. if they were able to secure any documents at a time when
there wasn’t a system that was particularly focused on doing so.
3. The right to life under article 21 of the constitution has been violated that holds that no person
can be deprived of his personal liberty except according to procedure established by law. The
foreign nationals were detained in prisons in living conditions that are not humane. They are
stopped from practicing their livelihood, from living their lives without meaning or dignity.
The right to life also provides persons with right to live with dignity. The Supreme Court has

37
ADM Jabalpur v. Shukla, AIR 1207 1976.
38
Golaknath v. State of Punjab, SCR (2) 762 1967.

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observed that: “Fundamental right: are available to all the persons of this country and those
who are not citizens of this country and who come here as tourists or in any other capacity, are
entitled to the protection of their lives in accordance with the Constitutional provisions. They
also have a right to life in this country. Thus they also have the right to live with human dignity
so long as they are here in India.”39 The Supreme Court further held that as a national of another
country, she could not be subjected to a treatment, which was below the dignity, or be subjected
to physical violence at the hands of Government employees who along with physical violence
outraged her modesty. According to the tone and the language used in Article 21, the rights are
available not only to every citizen of this country but also to a person of another country. The
Apex Court also held that “since the word ’life’ has been used in Article 21 of the Constitution
as a basic human right in the same sense as understood in the Universal Declaration of Human
Rights of 1948, there is no reason why it should be given a narrow meaning.”40 The Supreme
Court in another case held that it was the obligation of the state to protect the life and liberty
of non-citizens also, i.e. to provide to them all the protections and remedies afforded to citizens
under Article 21.41 In a landmark judgement , Justice Bhagwati in the Special Bench for the
Supreme Court observed that: “The expression ’personal liberty’ in article 21 is of the widest
amplitude and it covers a variety of rights. No person can be deprived of his right to go abroad
unless there is a law made by the State prescribing the procedure for so depriving him ,and the
deprivation is effected strictly in accordance with such procedure.”42 This wide variety of rights
constitute the personal liberty of a person including but not limited to certain fundamental and
basic human rights.
4. As stated in the letter by the prisoner Mr. Kustavo Kaviria, families were on purpose separated
and sent to different jails across the country which meant that children as young as 5 years old
were separated and distributed across prisons in the country. Before the Constitutional process
started for making the right to education a fundamental right, the Supreme Court held that every
citizen of this country has the right to free education until he completes the age of fourteen
years43. Their right to education as now guaranteed by the constitution of Zedellin was violated.
According to Article 21(A), the State shall provide free and compulsory education to all
children of the age of six to fourteen years in such manner as the State may, by law, determine.
Total compliance with Article 21-A means that there is a necessity of providing good quality

39
Chairman Railway Board and others v. Chandrima Das, 2 SCC 465 2000.
40
Id.
41
NHRC v. State of Arunachal Pradesh, 1 SCC 742 1996.
42
Maneka Gandhi vs Union of India, SCR (2) 621 1978.
43
J.P. Unnikrishnan and others v. The State of Andhra Pradesh, SCC (1) 645 1993.

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education to all children aged 6 to 14 years. This right of a child to complete and compulsory
education should not only be free but should also be quality education. In this NRC process we
can see that not only is there no compliance but the education of children is being actively
stopped.

(B) Contravention of provisions of International treaties and conventions.

5. Apart from the blatant violation of domestic laws, there are several international treaties
whose provisions are not met or are violated by this order. The courts on many occasions
by accepting the rule of judicial construction have held that regard must be paid to
International Conventions and norms for constructing domestic law.

6. NRC has already affected and will continue to affect even the most basic rights of the people
including right to livelihood, right to residence, equality before law, fair trial, minority
rights, right to information and freedom of expression. Most importantly, those left out of
NRC will have several aspects of their right to life being affected. Right to life, which is
guaranteed by the constitution even to non-citizens, is the most basic human right, in other
words, an umbrella right that covers within its ambit almost every other right guaranteed to
an individual by virtue of being a human.

7. The process being followed here is clearly in violation of several international treaties and
charters to which Zedellin is a signatory. These include Article 27 of the International
Covenant on Civil and Political Rights, ratified in 1979 which imposes on the state the
responsibility to ensure that the ethnic, religious and linguistic minorities have sufficient
rights “to enjoy their own culture, to profess and practice their own religion, or to use their
own language”44. In the case where the point involved was whether a right incorporated in
the Covenant on Civil and Political Rights, which is not recognized in the Indian
Constitution, shall be available to the individuals in India45. Justice Krishna lyer reiterated
dualism and asserted that the positive commitment of the State Parties ignites legislative
action at home but does not automatically make the Covenant an enforceable part of the
’Corpus Juris’ in Zedellin. Thus, although the Supreme Court has stated that the Universal

44
International Covenant on Civil and Political Rights, December 16, 1966.
45
Jolly George Varghese v. Bank of Cochin, SCR (2) 913 1980.

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Declaration cannot create a binding set of rules and that even international treaties may at
best inform judicial institutions and inspire legislative action.

8. Article 19 of the ICCPR also guarantees to everyone, the right to seek and receive all kinds
of information, an important component of right to expression. The arbitrary nature of the
process that has deprived people of their right to liberty, impartiality and fairness in
procedure has also led to the violation of articles 9 and 10 of the Universal Declaration of
Human Rights (UDHR) and articles 9 and 14 of the International Covenant on Civil and
Political Rights (ICCPR).

9. Moreover, Article 1(1) of the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) which was ratified by Zedellin in 1968 defines racial
discrimination as “any distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other field of public
life”46. Zedellin is therefore, under an obligation to not discriminate in any form that might
constitute discrimination under this covenant. Also, Article 5(d)(iii) of the ICERD which
obligates the State parties to guarantee the right of everyone to equality before the law,
including in the enjoyment of the right to nationality, without discrimination on any
prohibited grounds. The deprivation of citizenship, a large part of which is based a
discriminatory process, is hence, clearly in violation of one’s right to nationality.

10. Women and children are facing even more difficulties. In those times there wasn’t a lot of
attention paid to documentation, even less so for women considering the highly patriarchal
setting. They ended up with no proof to substantiate their claims of citizenship or residence
before the cut-off date and consequently so did the children. These women and their children
have been left standing on a cliff with no means to prove their identity. Apart from directly
affecting the rights of these children, their exclusion has also led to a violation of the UN
Convention on the Rights of Children, to which Zedellin is a signatory.47

46
The International Convention on the Elimination of All Forms of Racial Discrimination, November 20, 1963.
47
UN Convention on the Rights of Children, November 30, 1989.

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 Written Submission for the Petitioners

11. “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his
nationality, nor denied the right to change his nationality.” 48 Underlying the 1961
Convention is the notion that while States maintain the right to elaborate the content of their
nationality laws, they must do so in compliance with international norms relating to
nationality, including the principle that statelessness should be avoided.49 For those who
qualify as stateless persons, the Convention provides important minimum standards of
treatment. It requires that stateless persons have the same rights as citizens with respect to
freedom of religion and education of their children. For a number of other rights, such as
the right of association, the right to employment and to housing, it provides that stateless
persons are to enjoy, at a minimum, the same treatment as other non-nationals. 50 These
conventions aim at reducing, preventing and ultimately eliminating statelessness. This is
because statelessness can result in the denial of human rights and an increased vulnerability
to abuse. Without citizenship, stateless people have no legal protection and no right to vote.
They often lack access to education, employment, health care, registration of birth, marriage
or death, and property rights. Stateless people may also encounter travel restrictions, social
exclusion, and heightened vulnerability to sexual and physical violence, exploitation,
trafficking in persons, forcible displacement, and an increased risk of radicalization 51 This
is what they are in part already facing and will continue to face once they are stripped of
their nationality. This is a clear consequence as the government of Medellin does not
consider them as citizens and they intend to deport them to Tescobar who has not agreed to
it and has instead declared that it does not believe any of its citizens has illegally crossed
over to Medellin, thereby effectively dismissing the claim that those identified foreign
nationals are citizens of Tescobar. This, consequently would lead to statelessness of those
persons.

48
Article 15, Universal Declaration of Human Rights, December 10, 1948.
49
Convention on the Reduction of Statelessness, August 30, 1961.
50
Convention relating to the Status of Stateless Persons, September 20, 1948.
51
UNHCR, what would life be like if you had no nationality? March 1999, http://docplayer.net/322338-What-
would-life-be-like-if-you-had-nonationality.html, 3.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is humbly

prayed that this Honourable Court may be pleased to adjudge and declare that:

I. The Hon’ble Court has the necessary jurisdiction to hear the matter.

II. The National Register of Citizenship should be scrapped by this Hon’ble court on a
moral basis with the aid of Constitutional Morality.

III. The foreigners order is violative of basic human rights and also contravenes many
international human rights conventions and therefore it deserves to be stuck down.

And / or pass any other order that this Honourable Court may deem fit in the interests of

justice, equity and good conscience.

All of which is humbly prayed,

Sd/-

Counsels for the Petitioners

Date- 10th November 2016.

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