1 Te"' Co(e) A*
INTRA MOOT COURT COMPETITION 2015
IN THE SUPREME COURT SARAPOVA EURASIA
CASE CONCERNING STATELESSNESS STATELESSNESS OF INHABITANTS INHABITANTS OF ISHNIA Swipe Away Away Statelessness, NGO, Eurasian Chapter APPELLANT V.
1. State of Ishnia Ishnia represent represented ed by Mr. Be!or, Be!or, Minister Minister of "our "ouris#, is#, Eurasia Eurasia $. State of Eurasia Eurasia represented represented by Mr. Mr. "ay "aylor, lor, "our "ouris# is# %epart#ent %epart#ent Seretary Seretary &. Mr. 'ettle, 'ettle, General General Mana(er, Mana(er, 'o(ala ) Sons *Asian *Asian +e(ion +e(ion RESPONDENT
ON SUBMISSION TO THE SUPREME COURT OF EURASIA
MEMORIAL for the APPELLANT Sw!e Aw"# Aw"# St"te$e%%&e%% St"te$ e%%&e%%
Intra Moot Court Co#petition $-1 TABLE T ABLE OF CONTENTS CONTENTS
PA+E.NO
1. IN%E/ O0 O0 A"2O+ A"2O+I"IES I"IES3333 33333333 33333333 33333333 33333333 33333333 33331 1 $. S"A" S"A"EMEN" O0 4+IS%IC"I 4+IS%IC"ION3.3 ON3.33333 33333333 33333333 3333....... ............. ............. .............. .......& &
&. S"A" S"A"EMEN" O0 0AC"S33 0AC"S3333.33 33.333333 33333333 33333333 33333333 33333..... 3......5 .5
5. ISSES ISSES IN6O76 IN6O76E%3333333 E%33333333333 33333333 33333333 33333333 333333... 33...38 38
. SMMA+9 SMMA+9 O0 A+GMEN"S.3 A+GMEN"S.33333 33333333 33333333 333333... 33......... ............. .............. ............: .....:
;. BO%9 O0 O0 A+GMEN A+GMEN"S.33 "S.333333 33333333 33333333 33333333 33333333 3333....... ..........< ...<
8. =+A9E =+A9E+.333 +.33333..3 33..33333 33333333 33333333 33333333 33333333 3333333. 333.318 318
1.
INDEX OF AUTHORITIES
AC"S
Me#orial for Me#orial for the Appellant the Appellant
Intra Moot Court Co#petition $-1 1. $. &. 5. . ;. 8.
0orei(ners At 1<5; "he Citi>enship At 1< "he Constitution of India, 1<"he Constitution of 4a##u and 'ash#ir 1<; "he 4a##u and 'ash#ir 7and A?uisition At, 1<&5 "he 4a##u and 'ash#ir +e?uisition and A?uisition of I##o@able =roperty At 1<$ CASE 7AS
1. Bandana Mu!ti Morha @. nion of India *1<:5 & SCC 1;1 $. %.S Na!ara @. nion of India *1<:& 1 SCC &-,&55 &. %elhi %e@elop#ent Authority @. S!ipper Constrution ) Anr, *1<;; AI+ 81 SCC *1 $8$ 5. Indian Counil for En@iro7e(al Ation @. nion of India ) Others, rit =etition No. <;8 of 1<:< . M.C Mehta ) Anr. Et. @. nion of India ) Ors 1<:8 AI+ <; ;. nion of India ) Ors @. %hanwati %e@i ) Ors 8. CON6EN"ION
1.
International Con@ention on the Eli#ination of All 0or#s of +aial, New 9or!, 8 Marh 1<;;, nited Nations BOO'S +E0E++E%
1. pendra Bai, Alie 4aob, "arlo! Sin(h, Reconstructing the Republic, 2aranad =ubliation =@t. 7td. ON7INE SO+CES 1. Mohan 'rishan "en(, Feer!l "urisiction, 'ash#ir =andit Networ!, a@ailable at www.i!ash#ir.netDartile&8-Dhapter.ht#l 7ast 6isited on $- No@ $-1 $. Brad '. Blit>, Statelessness, =rotetion and E?uality, <, +efu(ee Studies Centre, 6ol. &, Sep $--<, a@ailable at httpDDwww.rs.o.a.u!DpubliationsDstatelessnessprotetionand e?uality &. %eepi!a =ra!ash Maan@i "i!u, India and the hallen(es of Statelessness A re@iew of the le(al fra#ewor! relatin( to nationality, a@ailable at 2. httpDDwww.nludelhi.a.inDdownloadDpubliationD$-1DIndiaF$-andF$-the F$-Challen(esF$-ofF$-Statelessness.pdf 5. 0aya> ani, Citi>en of India but stateless in 'ash#ir, "he Sunday Standard, $ No@, $-15, httpDDwww.newindianepress.o#DthesundaystandardDCiti>ensofIndiaBut Statelessin'ash#irD$-15D11D-$Dartile$-&5;.ee
Me#orial for the Appellant
Intra Moot Court Co#petition $-1
3.
STATEMENT OF JURISDICTION
CASE CONCERNING THE STATELENESS OF INHABITANTS OF ISHNIA
-. Appell!nt
Sw!e Aw"# St"te$e%%&e%%, N+O
V.
St"te of I%h&" re!re%e&te( # Mr. Be/or, M&%ter of Tor%', Er"%" St"te of Er"%" re!re%e&te( # Mr. T"#$or, Tor%' De!"rt'e&t Se/ret"r# Mr. ett$e, +e&er"$ M"&"3er, o3$" 4 So&% A%"& Re3o&6 -. Responent
Me#orial for the Appellant
Intra Moot Court Co#petition $-1
#The $!tter is before Supre$e Court !s ! %IL file b& 'ritten letter b& S'ipe A'!& St!telessness (NGO) uner Article *+ of the Ini!n Constitution Since Eur!si! !n its leg!l fr!$e'or- is p!ri $!teri! to Ini! !n its leg!l fr!$e'or- therefore the Ini! 'ill be referre !s Eur!si! !n Ini!n l!'s 'oul be !pplic!ble in reg!r to .nion of Eur!si! Ishni! is gi/en ! speci!l st!tus b& the Constitution of Eur!si!, it 'oul be tre!te !s "!$$u !n 0!sh$ir since it is the onl& such st!te th!t h!s been gi/en ! speci!l st!tus uner Art *12 of the Ini!n Constitution3
IN THE SUPREME COURT 4.
EURASIA
STATEMENT OF FACTS
1. "hat Eurasia is a #ultiultural and #ultilin(ual ountry whih has a history of forei(n in@aders who ha@e on?uered @arious portions of the ountry and ha@e influened the li@es of the Eurasians. It has led to the partiipation and adoption of @arious reli(ions and beliefs a#on(st the Eurasians and to na#e a few 2induis#, Isla#, 4ainis#, and Si!his# are the #ost popular reli(ions followed by the Eurasians. $. "hat a forei(n nation, 2in(istan a#e as traders in Eurasia and bea#e the rulers of the ountry for al#ost a entury. &. "hat Ishnia was one suh prinely state where the predo#inant reli(ion followed was Isla# thou(h there were ertain eistin( population who are 2indus, Si!hs and 4ains, but were ne(li(ible in o#parison to the for#er ones. 5. "hat when Eurasia reei@ed independene, Ishnia was bein( ruled by a 2indu +aa who a(reed to aede to Eurasia but not want to be a part of it in the #atter of ad#inistration. In this re(ard he si(ned a bilateral treaty with Eurasian (o@ern#ent whereby it was stated that Ishnia oin Eurasia as a #e#ber state only if its entire people a(reed to suh a proposal. . Ishnia failed to arry out plebisite aordin( to the treaty E@en thou(h it was deided as early as in 1<5: but due to o##unal tension, war with the nei(hborin( nation, et. it ould not be arried out.
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 ;.
"hat in 1<- when Eurasia adopted its Constitution after an elaborate debate it was deided to ha@e a separate pro@ision for Ishnia in the Constitution of Eurasia. 8. "hat in $-1- to urb the issue of politial unrest at Ishnia the nion Go@ern#ent of Eurasia deided to hold a plebisite to urb (rowin( de#and of independene. :. "hat a sur@ey to alulate the nu#ber of eli(ible @oters. After the sur@ey it was re@ealed that al#ost $-F of the total population were not eli(ible to (i@e their @otes due to absene of proper dou#ent e@en after residin( in Ishnia for so#e deades. <. "hat on 4anuary $1, $-11 for one wee! the details of the persons were re(istered under three distint heads person!l, propert& !n others et!ils 0or the third head they sou(ht larifiations on the #anner in whih they a#e to Ishnia and attah proof to substantiate their lai#. 1-. "hat the seond step whereby they delared the list of the andidates who are eli(ible to partiipate in the plebisite bein( a part of Ishnia. &-F of the total appliants were dis#issed on the (round that they ould not produe @alid dou#ents to pro@e as to how 5. they a#e to reside in Ishnia or e@en Eurasia as a result of whih they were delared as nonnationals of Eurasia.
11. "he Go@ern#ent was unable to ondut the plebisite due to wide spread protest aross the state of Ishnia whih soon turned into o##unal dispute. 1$. "he protesters ar(ued that the state was tryin( to o##unali>e the issue by (rantin( status to 2indus and not the Musli#s whih will affet the plebisite. 1&. "hat in May $-1&, the state (o@ern#ent to pro#ote trade and o##ere in@ited o#panies to in@est in the touris# setor of Ishnia. 15. 'o(ala ) Sons, a #ultinational o#pany based in Chillinia epressed that they are interested in settin( up hain of hotels in India, and therefore re?uire a #e#orandu# of understandin(. 1. A tripartite a(ree#ent was si(ned between the Minister of "ouris# Mr. Be!or, the state of Ishnia was represented by its "ouris# %epart#ent Seretary Mr. "aylor and Mr. 'ettle, the General Mana(er *Asian +e(ion 'o(ala ) Sons. 1;. "hat on $- Au(ust $-1&, a onession a(ree#ent was si(ned whereby in ase the onessionary fails to o#plete the proet within the presribed ti#e period, the ownership ri(hts of the proet will @est with the Go@ern#ent. 18. "hat the Go@ern#ent of Ishnia set to a?uire land speially fro# the people who had not been leared by the Go@ern#ent of Eurasia as residents of either Eurasia or Ishnia. 1:. "hat the Go@ern#ent of Ishnia ustifies this at on the (rounds of publi (ood and holisti de@elop#ent. "hey announed o#pensation for the land and assured that priority will be (i@en to the inhabitants in ter#s of ob opportunities. 1<. "hat the land was foribly ta!en, without any o#pensation, fro# the stateless population whih aused disontent a#on(st the people and they started de#onstratin( a(ainst the a?uisitions. "he Go@ern#ent of Ishnia ustified their ations by statin( that
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 the land was !ept in possession of those who did not ha@e proper dou#ents, suh piee of lands and were neither the iti>ens of the Eurasia nor the residents of Ishnia aordin( to le(al ter#s, resultantly, they did not ha@e any ri(ht to a?uire or hold any property in Ishnia and hene there is no wron( in the a?uisition ation ta!en up by the (o@ern#ent. $-. Swipe Away Statelessness, an NGO a#e to !now about the proble# and deide to file an +"I lai#in( infor#ation on status and reords of stateless, reasons for statelessness and feedba! about the sur@ey. $1. "hat in Otober $-1&, a writ petition was filed by the NGO for @iolation of en@iron#ental standards. A o##ittee was set up by the nion Go@ern#ent. $$. "hat on $5 4anuary $-1, the o##ittee set up (a@e it report and that the o#pany owned lar(e funds in @arious ountries. $&. "hat an in@estor based a(eny filed a o#plaint to SECE statin( for the funds used to finane the proet in Eurasia is the profits of the o#pany upon whih they ha@e not 6. paid any ta in the other states and was tryin( to siphon the a#ount in this way. "he SECE issued a show ause notie. $5. 'o(la ) Sons filed a suit in 2i(h Court on (rounds that there was no Locus St!ni. "he Go@ern#ent also repudiated the onession on (rounds of nonperfor#ane and pro@idin( o#pletion date as two years fro# date of a(ree#ent *Clause 1& ) Clause $. $. 'o(la ) Sons filed a suit as bein( @iolati@e of force $!4eure lause of the onession a(ree#ent. $;. "hat on the re?uest of the NGO throu(h a letter, the Ape Court su##oned representation fro# the Go@ern#ent of Eurasia and 'o(ala ) Sons and as!ed the# to show ause as to why ation should not be initiated a(ainst the#. $8. "hat the Ape Court after hearin( the response and onsiderin( other #atters in 2i(h Court they deided to ta!e up the #atter for hearin( before itself ) as!ed parties to file respeti@e petitions due onsideration of ost.
Me#orial for the Appellant
Intra Moot Court Co#petition $-1
7.
ISSUES INVOLVED
1. hether the suit is #aintainable under the urisdition of Supre#e Court of EurasiaH $. hether the Go@ern#ent of Ishnia is eploitin( the stateless nature of inhabitantsH &. hether the Go@ern#ent is prioriti>in( the interest of the o#pany o@er publi interestH
Me#orial for the Appellant
Intra Moot Court Co#petition $-1
8.
SUMMARY OF ARGUMENTS
1. THAT THE SUIT IS MAINTAINABLE UNDER 7URISDICTION OF SUPREME COURT OF EURASIA
"he supre#e Court of Eurasia has ri(ht to hear the present ase as it was a =I7 filed on behalf of the people of Ishnia whose lands ha@e been a?uired. "he Supre#e Court has deided to ta!e up the #atter after onsiderin( the ase pendin( before 2i(h Court. Suh power has been onferred to the Supre#e Court by Art 1&< A. "he Supre#e Court has ri(ht to hear ases as =I7 whih ha@e been filed for the protetion of the en@iron#ent. In the present ase the o#pany is aused of @iolatin( en@iron#ental standards. E@erybody within the territory of India has been onferred the ri(ht to life and li@elihood under Art $1 of the Indian Constitution and whih annot be ta!en away in any iru#stanes. After onsiderin( all the iru#stanes it an be said that the Supre#e Court has ri(ht to hear the present ase. 2. THAT +OVERNMENT OF ISHNIA ARE E8PLOITIN+ THE STATELESS NATURE OF INHABITANTS.
"he Go@ern#ent of Ishnia o@er the past ;8 years fro# attainin( the speial status has not been able to hold a plebisite and therefore has not been able to deide the status of its inhabitants. In Eurasia there is a la! of laws in re(ards to statelessness and the state (o@ern#ent is ta!in( ad@anta(e of the situation. "here is an absene of proper identifiation proess due to whih the basi ri(hts of inhabitants of Ishnia. By laws of iti>enship of Eurasia, the inhabitants of Ishnia are iti>ens, but they are not onsidered inhabitants of Ishnia.
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 9. THAT +OVERNMENT OF ISHNIA IS PRIORITI:IN+ INTEREST OF THE COMPAN; ABOVE THE PUBLIC INTEREST.
"he (o@ern#ent is #a!in( use of the politial tur#oil and is able to #aintain and pro#ote their interest o@er publi interest. "hey ha@e @iolated the direti@e priniples of state. By the a(ree#ent they ha@e helped 'o(la ) Sons to a?uire land forefully hene tar(etin( the stateless iti>ens. "hey ha@e not delared their intention to a?uisition and aordin( to law the #ethod of (i@in( o#pensation is inorret. .
BODY OF ARGUMENTS
1. THAT THE SUIT IS MAINTAINABLE UNDER 7URISDICTION OF SUPREME COURT OF EURASIA
"he State of Ishnia is between a politial tur#oil due to its history. %ue to this tur#oil so#e inhabitants li@in( in Ishnia fro# 1<5: are denied the ri(ht of iti>en and hene they annot be a part of the plebisite. "he state has ti#e and a(ain failed to arry out the plebisite1 in ;8 years. "he iru#stanes in Ishnia has ta!en away the basi ri(hts of people residin( in Ishnia and the (o@ern#ent has failed to find a solution for that #atter. "he Go@ern#ent of Ishnia on the other hand ha@e used this situation to their ad@anta(e by foribly ta!in( away and tar(etin( the land of the stateless. 1.1 THAT SUPREME COURT HAS 7URISDICTION TO
1.1.1 "he Supre#e Court of Eurasia ha@e powers to withdraw any aseDases pendin( in hi(h ourt and dispose of the ase itself $. On the report sub#itted by the three person o##ittee set up by the (o@ern#ent of Eurasia stated that funds used by the o#pany were lar(ely forei(n funds fro# the @arious businesses that the o#pany were ownin( in @arious other ountriesJ&. On a o#plaint #ade to SECE, one of re(ulatory bodies of Eurasia, the SECE issued a show 1 K , 0atsheet 2 Artile 1&< A, Constitution of India 1<3 K1-, 0atsheet
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 ause notie as the o#panyLs profit used in Eurasia were the profits of o#panies in other state where they had not paid any ta and were tryin( to siphon the #oney out. "o whih 'o(ala ) Sons hallen(ed the notie on (rounds of absene of Locus St!ni In return the Go@ern#ent also deided to repudiate the onession a(ree#ent whih was hallen(ed by 'o(ala ) Sons bein( @iolati@e of force $!4eure5 1.1.$ In the abo@e #entioned iru#stane the #atter related to siphonin( the #oney to a@oid ta was pendin( before the 2i(h Court. "he #atter was further delayed as the Go@ern#ent deided to repudiate ertain lauses of the a(ree#ent. 2ene under Artile 1&< A, Constitution of India, 1<- the Supre#e Court, if it is satisfied on its own #otion it an withdraw the ase 1!. pendin( before the 2i(h Court. 1.1.& In si#ilar iru#stanes, the Supre#e Court direted transfer of all ases re(ardin( different properties onernin( the S!ipper Constrution Co#pany to itself. It was direted that no ourt or authority shall be o#petent to interdit or otherwise interfere with the disiplinary or other proeedin(s that #ay be ta!en a(ainst the aforesaid authorities pursuant to the order. 1.1.5 "herefore the Supre#e Court an transfer ases in@ol@in( the sa#e or substantially the sa#e ?uestion of law whih are pendin( before the ourt and that suh ?uestions are of (eneral i#portane. "herefore, due to the iru#stane in Ishnia in re(ard to o##unal tension and to protet the interest of in@estors, the Supre#e Court of Eurasia ha@e the urisdition to ta!e up the ase. 1.2 THAT THE N+O CAN FILE A
1.$.1 "he NGO bein( representati@e of the inhabitants of Ishnia, filed a writ petition a(ainst the o#pany for ha@in( @iolated the en@iron#ental standards by disturbin( the eolo(ial balane while onstrutin( their hain of hotels and forest resorts without due appro@al. "he NGO was authori>ed to file a writ petition for @iolation of Artile $1, =rotetion of 7ife and =ersonal 7iberty. 1.$.$ An en@iron#entalist or(ani>ation brou(ht to li(ht the sufferin(s and woes of people li@in( in the @iinity of he#ial industrial plants in India. It was de#onstrated how the onditions of a peaeful, nie and s#all @illa(e of +aasthan were dra#atially han(ed after the respondent started produin( ertain he#ials li!e Oleu# *onentrated for# of sulphuri aid and Sin(le Super =hosphateJ;
4 K 11, 0atsheet 5 6elhi 6e/elop$ent Authorit& / S-ipper Construction 7 Anr, *1<;; AI+ 81 SCC *1 $8$
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 1.$.& "he 2i(h Court of Ishnia is @ested with the power to issue writs of #anda#us, prohibition, ?uo warranto and ertiorari, or any of the#, for the enfore#ent of any of the funda#ental ri(hts.8 1.$.5 "he ri(ht to a lean and pollution free en@iron#ent o#es under the Artile $1:, +i(ht to 7ife "he ri(ht to li@e is a funda#ental ri(ht under Artile $1 of the Constitution, and it inludes the ri(ht of enoy#ent of pollutionfree water and air for full enoy#ent of life. If anythin( endan(ers or i#pairs that ?uality of life in dero(ation of laws, a iti>en has the ri(ht to ha@e reourse to Artile &$ of the Constitution3J As held in the fa#ous M.C Mehta ) Anr. Et. @. nion of India ) Ors<. "herefore a writ an be filed on behalf of the NGO a(ainst the o#pany for @iolation of Artile $1. 1.9 THAT SUPREME COURT HAS 7URISDICTION TO ACCEPT LETTER FILED B; 11. THE N+O.
1.&.1 "he NGO wor!in( for protetion of stateless population aross the (lobe1- filed a +"I petition and a writ petition a(ainst the o#pany ha@in( @iolated en@iron#ental standard by disturbin( the eolo(ial balane while onstrutin( the hain of hotels and forest resorts without due
[email protected] "he la! of response of the +"I and the influene of Go@ern#ent of Eurasia by settin( up the o##ittee by nion Go@ern#ent for in@esti(ation the writ, o#pelled the NGO to write an appliation to the Supre#e Court of Eurasia and after hearin( the respondents the ourt deided to ta!e up the #atter. 2ene the NGO was orret in filin( a =u bli Interest 7iti(ation on behalf of the inhabitants of Ishnia, whose status was not leared by the state (o@ern#ent and who were tar(eted by foreful a?uisition of land. 1.&.$ "he Supre#e Court has urisdition o@er the state, #ost of the i#portant funda#ental ri(hts ha@e been etended to the state.1$"he ri(ht to life and personal liberty, e#bodied in Artile 6 Ini!n Council for En/iro8Leg!l Action / .nion of Ini! 7 Others, rit =etition No. <;8 of 1<:<. 7 Mohan 'rishan "en(, Feer!l "urisiction, 'ash#ir =andit Networ!, www.i!ash#ir.netDartile&8-Dhapter.ht#l 7ast 6isited on $- No@ $-1. 8 Artile $1, Constitution of India 1< 1<:8 AI+ <; 1! K :, 0atsheet. 11 K <, 0atsheet. 12 pendra Bai, Alie 4aob, "arlo! Sin(h, Reconstructing the Republic, 2aranad =ubliation =@t. 7td.
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 $1 is appliable to the state without eeption.1& In the State, the ri(ht to property is still a funda#ental ri(ht hene, depri@ation of the property without pay#ent of solatiu# and interest @iolates an indi@iduals funda#ental ri(ht to property and, therefore, it would be arbitrary offendin( Artile 15 of the Constitution.15 1.&.& Artile &$1 (uarantees re#edies for enfore#ent of ri(hts, as ri(ht to property is still a funda#ental ri(ht in Ishnia, the @iolation of this ri(ht an be hallen(ed by way of =I7. E@en a letter an be treated as a rit =etition if in the nature of =ubli Interest 7iti(ation3 when letter is addressed by an a((rie@ed person or by a publi spirited indi@idual or a soial ation (roup for enfore#ent of the onstitutional ri(hts of a person who by reason of po@erty, disability or soially or eono#ially disad@anta(ed position find it diffiult to approah the ourt would be ustified, nay bound, to treat the letter as a writ petitionJ1;. "herefore the inhabitants of Ishnia who are ter#ed as statelessL bein( soially disad@anta(e are bein( represented by the non 12. (o@ern#ental or(ani>ation and the ourt is bound to treat the letter written by the NGO. 1.&.5 +e(istered soiety, a nonpolitial, nonprofit #a!in( and @oluntary or(ani>ation, espousin( ause of old infir# pensioners, has locus st!ni. Any #e#ber of the publi ha@in( suffiient interest an #aintain an ation for udiial redress for publi inury arisin( fro# b reah of publi duty or fro# @iolation of so#e pro@ision of the Constitution or the law and see! enfore#ent of suh publi duty and obser@ane of suh onstitutional or le(al
[email protected] "herefore, non(o@ern#ental or(ani>ation bein( the unaffeted third party an file a =ubli Interest 7iti(ation by way of a letter. 1.&. "herefore, onsiderin( the #ultipliity of ases and the nature of the ase, the Supre#e Court of Eurasia has the urisdition to ta!e up the ase based on the abo@e#entioned fators and the NGO an represent the inhabitants of Ishnia. 2. THAT +OVERNMENT OF ISHNIA ARE E8PLOITIN+ THE STATELESS NATURE OF INHABITANTS. 13 Mohan 'rishan "en(, Feer!l "urisiction, 'ash#ir =andit Networ!, www.i!ash#ir.netDartile&8-Dhapter.ht#l 7ast 6isited on $- No@ $-1.nion of India ) Ors @s. %hanwati %e@i ) Ors, a@ailable at www.udis.ni.inDsupre#eourtDi#(s1.aspHfilena#eP1$1 14 .nion of Ini! 7 Ors /s 6h!n'!ti 6e/i 7 Ors, a@ailable at www.udis.ni.inDsupre#eourtDi#(s1.aspHfilena#eP1$1 15 Artile &$, Constitution of India 1<16 B!n!n! 9u-ti 9orch! / .nion of Ini! *1<:5 & SCC 1;1 17 6S N!-!r! / .nion of Ini! *1<:& 1 SCC &-,&55
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 "he nation of Eurasia had a history of @arious forei(n in@aders due to whih there has been partiipation and adoption of @arious reli(ions within the ountry.1: Ishnia, bein( a prinely state, was ruled by a 2indu raa but the #aority of the population followed Isla#. 1< A bilateral treaty was si(ned by the +aa and it was deided that Ishnia oin Eurasia as a #e#ber of state on if its people a(reed. "he onsensus was deided to be arried out by the plebisite. In 1<5:, the (o@ern#ent atte#pted to ondut the plebisite but failed due to o##unal tension with the nei(hborin( o#pany. Aordin(ly, Ishnia was (i@en a speial status when Eurasia adopted its onstitution in 1<-.$- "he state (o@ern#ent sine 1<5: did not atte#pt to ondut the plebisite till $-1-, whih too was effet of politial unrest. "herefore the state (o@ern#ent whilst enoyin( the speial reo(nition i(nored the need to larify the status of people residin( in Ishnia. In $-1-, the sur@ey re@ealed that $-F of the population were not eli(ible for @otin( as they did not ha@e any proper dou#entation. "he ondut of state (o@ern#ent points towards ser@in( interest of partiular setion and @iolatin( the basi ri(hts of inhabitants of Ishnia. 2.1 IDENTIFICATION OF STATELESS PEOPLE
$.1.1 Eurasia bein( one of the #e#ber of nited Nations and a supporter of basi 2u#an +i(hts, that they ha@e not si(ned any of the Con@ention 1<5 related to status of stateless persons. "here is a dire need for a fra#ewor! to help identify and subse?uently deide the status 13. of stateless inhabitants. $.1.$ Aordin( to =rofessor Brad '. Blit>Ls +esearh on Statelessness, denial or depri@ation of iti>enship #ay inlude introdution of disri#inatory laws that tar(et speifi o##unities, the arryin( out of a ensus of seleted populations, or the introdution of onerous pro@isions that #a!e it @irtually i#possible for ertain (roups and indi@iduals to aess their ri(hts to iti>enship, inludin( establishin( a le(al identity by #eans of for#al re(istration of births, #arria(es, and @otin(.J$1 "herefore, the @arious atte#pts #ade by the (o@ern#ent to eradiate statelessness are atually the soure of statelessness. In Eurasia there are la! of opportunities to re(ister births and #arria(es, the use of hi(h fee for dou#ents and re?uire#ent of witness to ertify dou#ents are the @arious soures due to whih inhabitants of Ishnia ha@e not been able to attain iti>enship.$$ 18 K 1 0atsheet. 1 K $ 0atsheet 2! Id. 21 Brad '. Blit>, St!telessness, %rotection !n E:u!lit& , <, +efu(ee Studies Centre, 6ol. &, Sep $--<. 22 Brad '. Blit>, St!telessness, %rotection !n E:u!lit& , 1;, +efu(ee Studies Centre, 6ol. &, Sep $--<.
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 $.1.& Aordin( to Setion $*&, 0orei(nerLs At$& a forei(ner is, A person who is not a iti>en of IndiaJ. In a report sub#itted to N2C+, "he report finds this definition to not be lear about inlusion of stateless persons within it. A person who #ay be in possession of nationality of another nation but is present in India is as #uh a forei(ner under this definition as is a person with no proof of identity on hi# to pro@e his nationalityJ$5 "herefore the pro@ision is silent in ase nationality is not pro@ed. 2.2 CITI:ENSHIP IN EURASIA
$.1.1 "he International Con@ention on the Eli#ination of All 0or#s of +aial %isri#ination adopted by the General Asse#bly of the nited Nations on $1 %ee#ber 1<; was si(ned by :: ountries, Eurasia was one of the si(natories and had ratified the on@ention on & %ee#ber 1<;:. Aordin( to on@entionLs Artile *d *iii States =arties underta!e to prohibit and to eli#inate raial disri#ination in all its for#s and to (uarantee the ri(ht of e@eryone, without distintion as to rae, olor, or national or ethni ori(in, to e?uality before the law, notably in the enoy#ent of the ri(ht to nationalityJ$. "herefore Eurasia after ratifiation should be responsible for #a!in( laws to larify nationality of inhabitants. $.1.$ "he laws of the Constitution of Eurasia applies to the state of Ishnia without any eeption in #atters related to iti>enship. Artile $; defines the iti>ens as the persons, who at the ti#e of the o##ene#ent of the Constitution, had their do#iile in the ountry, pro@ided they were either born in the ountry, or either of their parents were born in or were residents of the ountry for not less than fi@e years i##ediately before the o##en e#ent of the Constitution.$8 $.1.& "he Citi>enship At$: pro@ides for re(istration as iti>ens, to suh persons who are not iti>ens by any other pro@ision of this At or the Constitution, inludin( a #inor, a spouse of a iti>en of the ountry, and a person (eneral.$<
23 Setion $*& 0orei(ners At 1<5; 24 %eepi!a =ra!ash Maan@i "i!u, Ini! !n the ch!llenges of St!telessness; A re/ie' of the leg!l fr!$e'or- rel!ting to n!tion!lit&. 25 International Con@ention on the Eli#ination of All 0or#s of +aial, New 9or!, 8 Marh 1<;;, nited Nations "reaty Series, 6ol ;;-, p 1<. A@ailable at httpDDwww.ohhr.or(DEND=rofessionalInterestD=a(esDCE+%.asp
26 Artile , "he Constitution of India, 1<27 Artile , "he Constitution of India, 1<28 "he Citi>enship At 1<
Me#orial for the Appellant
Intra Moot Court Co#petition $-1 $.1.5 Setion , Citi>enship At, 1<*b a person of the ountryLs ori(in who is ordinarily resident in any ountry or plae outside the undi@ided ountryJ an be onsidered as a Citi>en of Eurasia. "herefore aordin( to these pro@isions inhabitants should be (i@en iti>enship. 2.9 CITI:EN OF EURASIA, BUT NOT ISHNIA
$.&.1 "here are se@eral instanes where people of Ishnia ha@e been denied their basi ri(hts beause they do not possess neessary dou#ents. One suh si#ilar instane is :&yearold Mela +a# Ba(hat enthusiastially eerised his ri(ht to @ote at one of the pollin( booths in 4a##u li!e he has been doin( in all pre@ious 7o! Sabha eletions as iti>en. But in the o#in( Asse#bly eletions to be held fro# No@e#ber $ for the :8#e#ber 4)' 7e(islature, he annot @ote. 2e is pre@ented by state law sine the first eletions happened in 1<1, beause he is onsidered stateless.&$.&.$ "ehnially people residin( in Ishnia should ha@e a?uired iti>enship but the state itself does not want to larify the status of inhabitants and further want to eploit the# and depri@e the# of their basi ri(hts. 9. THAT +OVERNMENT OF ISHNIA IS PRIORITI:IN+ INTEREST OF THE COMPAN; ABOVE THE PUBLIC INTEREST.
"he Go@ern#ent of Ishnia si(ned a Me#orandu# of nderstandin( with the state (o@ern#ent whih stated that the state (o@ern#ent will pro@ide as a (uarantor and pro@ide neessary appro@als. "he o#pany in turn set a speial purpose @ehile in whih the (o@ern#ent has 5-F sta!e. 0or 'o(ala ) Sons the (o@ern#ent started forefully a?uirin( land tar(etin( espeially the people whose status was still not lear .&1 9.1 PRIVATE INTREST OVER PUBLIC INTEREST
&.1.1 As aordin( to the ar(u#ent in the seond issue the stateless people ha@ e the ri(ht to enoy their property and the wor! of (o@ern#ent is to protet the interest of its people in this ase the (o@ern#ent is de@iatin( fro# its obet and o#pletely i(norin( the interest of its people and si(nin( an a(ree#ent that will not only ta!e away their land but would also pro#ote the personal interests of the o#pany and (o@ern#ent. 2 %eepi!a =ra!ash Maan@i "i!u, Ini! !n the ch!llenges of St!telessness; A re/ie' of the leg!l fr!$e'or- rel!ting to n!tion!lit&. 3! 0aya> ani, Citi
ensofIndiaButStatelessin 'ash#irD$-15D11D-$Dartile$-&5;.ee 31 K 8 ) : 0atsheet
Me#orial for the Appellant
14.
Intra Moot Court Co#petition $-1 &.1.$ Aordin( to Setion 1&&$ under =art I6, %ireti@e =riniple of State =oliy, "he pri#e obet of the State onsistent with the ideals and obeti@es of the freedo# #o@e#ent en@isa(ed shall be the pro#otion of the welfare of the #ass of the people by establishin( and preser@in( a soialist order of soiety wherein all eploitation of #an has been abolished and wherein ustie soial, eono#i and politialshall infor# all the institutions of national lifeJ "herefore, it is the duty of the (o@ern#ent to protet the ri(hts and at no iru#stane eploit the people, whereas in this ase it had been eploitin( inhabitants and prioriti>in( pri@ate interest o@er publi interest thereby @iolatin( the abo@e#entioned pro@ision. &.1.$ "he (o@ern#ent here is for#in( a subsidiary o#pany i.e. a speial purpose @ehile with the o. in whih it has a sta!e whih #eans that they are preparin( a ba!up plan that in ase the parent o#pany (oes ban!rupt they are still in a benefiial position. 0or#in( of a speial purpose @ehile is in no way onneted to the personal (ood of the people as it only seures the position of the (o@ern#ent and the o#pany. &.1.& "he issue of do#iile of stateless people was !ept on hold by the (o@ern#ent due to o##unal riots and e@en later on after filin( of an +"I petition no response was (i@en fro# the side of (o@ern#ent on the statelessness of the people. &.1.5 "he three #e#ber o##ittee was for#ed under (o@ern#ent influene beause its #e#bers was appointed by the (o@ern#ent and the (o@ern#ent under lause & of the a(ree#ent had a(reed to pro@ide all neessary santions that was needed to run the o#pany and sine the (o@ern#ent had a sta!e in the o#pany it had to (i@e a lean hit to the o#pany. 9.2 THAT THE STATE OF ISHNIA FAILED TO PROVIDE DECLARATION OF INTENDED AC=UISITION.
&.$.1 hen the Go@ern#ent is satisfied that any partiular land is needed for publi purpose, a delaration shall be #ade to that effet under the si(nature of the +e@enue Minister or of so#e offier duly authori>ed on his behalf. && "herefore the Go@ern#ent failed to #a!e any suh delarations. "he o##unal war started for the @ery reason that the (o@ern#ent failed to speify whih land were to be a?uired and further tar(eted the ho#eless by foreful a?uisition. &.$.1 "he Colletor shall ause publi notie to be (i@en at on@enient plaes on or near the land to be ta!en, statin( that the (o@ern#ent intends to ta!e possession of the land.&5 Also when the (o@ern#ent is of the opinion that any property is needed or li!ely to be needed for any publi purpose, bein( the purpose of the state, it #ay by an order notify that the property should be 32 Setion 1&, "he Constitution of 4a##u and 'ash#ir 1<; 33 Setion ;, "he 4a##u and 'ash#ir 7and A?uisition At, 1<&5 34 Setion <, "he 4a##u and 'ash#ir 7and A?uisition At, 1<&5
Me#orial for the Appellant
15.
Intra Moot Court Co#petition $-1 re?uisitioned pro@ided that no property whih is bonafide used by the owner thereof as the residene of hi#self or his fa#ily.& In the fats, the Go@ern#ent of Ishnia on purpose too! residential land of the stateless inhabitants whih is a(ainst the abo@e#entioned pro@isions. 16.
9.9 INADE=UATE COMPENSATION
&.1. "he o#pensation pro@ided by the (o@ern#ent is not ade?uate beause the @aluation of property done by the# is not orret. "he @alue of property (oes on inreasin( #any folds in future so the @alue assessed here is not orret. Aordin( to Se $<&; #ar!et @alue of the land should not for# a part of o#pensation. hereas in the present ase the #ar!et @alue has been a part of o#pensation.
35 Setion &*1 *a, +e?uisition and A?uisition of I##o@able =roperty At 1<$ 36 Setion $<, "he 4a##u and 'ash#ir 7and A?uisition At, 1<&5
Me#orial for the Appellant
Intra Moot Court Co#petition $-1
17.
"RAYER
herefore in the li(ht of the issues raised, ar(u#ents ad@aned and authorities ited, it is hu#bly re?uested that this 2onorable Court #ay be pleased to adud(e and delare 1
"hat the tripartite a(ree#ent should be delared as @oid as the (o@ern#ent had no authority to a?uire the land.
$
%iret the Eurasia and Ishnia (o@ern#ent to return the land a?uired by it.
&
%iret (o@ern#ent to #a!e statutory pro@isions for protetin( the interest of people who are not able to proof their do#iile or nationality.
5
%iret the respondents to pay o#pensation and le(al epenses to the appellant and the people that were #ade stateless.
AN%DO+ =ass any other order that it dee#s fit in the interest of 4ustie, E?uity and Good Consiene.
CONCI7 0O+ A==E7EN"
Me#orial for the Appellant
Intra Moot Court Co#petition $-1
Me#orial for the Appellant
