CU 04 Respondents

Team Code:
st
1 CHANDIGARH UNIVERSITY
NATIONAL MOOT COURT COMPETITION
Before
THE HONBLE SUPREME COURT OF NAPASIA
APPELLATE JURISDICTION
(UNDER ARTICLE 133 (5) OF THE CONSTITUTION OF NAPASIA)
APPEAL NO: __________/2016
In the Matter of
REPRESENTATIVES OF NADHESIS -
APPELLANTS
RESPONDENTS
v.
REPUBLIC OF NAPASIA -
MEMORANDUM FOR THE RESPONDENTS
CU-04
-Table of Contents-
- Respondents-
TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
II
INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
IX
STATEMENT OF FACTS
STATEMENT OF ISSUES
XI
SUMMARY OF PLEADINGS
XII
PLEADINGS AND AUTHORITIES
1.
WHETHER THE PRESENT APPEAL IS MAINTAINABLE.
1.1
The Appellants lack the locus standi to file the Public Interest Litigation.
1.2
Federal Delimitation is a policy decision and cannot be challenged.
2.
WHETHER THE CONSTITUTION OF NAPASIA PROVIDES POLITICAL

-
2.1
Constitution Grants proportional representation to the people. -
2.2
State Restructuring is in accordance with the principles of the Constitution. 8
3.
WHETHER THE CITIZENSHIP PROVISIONS ARE DISCRIMINATORY IN NATURE.
REPRESENTATION TO THE NADHESIS.
PRAYER
-MEMORANDUM FOR THE RESPONDENTSI
9
XIV
-List of Abbreviations-
-Defendants-
LIST OF ABBREVIATIONS
&
And
Section
Paragraph
A.I.R.
All India Reporter
Anr.
Another
Art.
Article
Bom.
CEDAW
Cl.
Bombay
Convention on Elimination of Discrimination Against Women
Clause
Comm.
Committee
Const.
Constitution
COWP
Cowper's King's Bench Reports
CRC
Convention on the Rights of Child
ed.
Edition
et al.
et alia
Govt.
Government
H.L.C.
Hastings Law Cases
Honble
Honourable
i.e.
ICCPR
ICESCR
That is
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
-MEMORANDUM FOR THE RESPONDENTSII
-List of AbbreviationsId.
Ibid
L.J.
Law Journal
Ltd.
Limited
M.L.J.
M/S
-Defendants-
Madras Law Journal

Messieurs
N.C.T.
National Capital Territory
N.K.P.
Nepal Kanoon Patrika
Pg. No.
Page Number
Ors.
Others
PIL
Public Interest Litigation
pmbl.
Pt.
Preamble
Point
Rep.
Report
S.C.
Supreme Court
S.C.C.
U.N.T.S.
Supreme Court Cases

United Nations Treaty Series
U.S.
United States of America
UN
United Nations
UOI
Union Of India
v.
Versus
Vol.
Volume
W.L.C.
Western Law Cases
-MEMORANDUM FOR THE RESPONDENTSIII
-Index of Authorities-
- Respondents-
INDEX OF AUTHORITIES
CASES CITED
S. NO.
CASE NAME
Abdul Satar Haji Ibrahim Patel v. State of Gujrat, A.I.R. 1965 S.C.
PAGE NO.
12
1.
810.
2.
Achut Prasad Kharel v. HMG/Nepal et. al, Writ No. 3504, 2061 BS.
11
3.
Airports Authority Employees Union v. Union of India (2014).
4.
Ashok Kumar Pandey v. State of West Bengal, A.I.R. 2004 S.C. 1923.
Balachandra Anantrao Ravki & Ors. v. Ramchandra Tukaram & Ors.,
11
5.
(2002) 8 S.C.C. 616.
6.
Budhan Choudhary v. State of Bihar, A.I.R. 1955 S.C. 191.
13
7.
Chandra Kant Gyawali v. HMG et. al. 2059.
11
8.
CIT v. Hindustan Bulk Carriers, (2003) 179 C.T.R. (S.C.) 362.
11
9.
Dalip Singh v. State of U.P., (2010) 2 S.C.C. 114.
10.
Forbes v. Forbes, (1854) Kay 341.
11
11.
Fuzlunbi v. Khader Vali, (1980) 4 S.C.C. 125.
12
12.
Heller v. DOE, (509) U.S. 312 (1993).
13
13.
Holman v. Johnson, (1775) 1 COWP 341.
Jabir Yasin v. Home Ministry HMG/Nepal, et.al (Writ No. 3503, 2055
11
14.
B.S).
15.
K. Ramachandran v. Central University of Pondicherry (2011).
16.
Kedar Pandey v. Narain Bikram Sah, A.I.R. 1966 S.C. 160.
12
-MEMORANDUM FOR THE RESPONDENTSV
- Respondents-
17.
Kedar Pandey v. Narain Bikram Shah, A.I.R. 1966 S.C. 160.
10
18.
Kishore Samrite v. State of U.P. & Ors., (2013) 2 S.C.C. 655.
19.
Louis De Raet v. Union of India, A.I.R. 1991 S.C. 1886.
12
20.
M/S Holicow Pictures Pvt Ltd. v. P C Mishra, A.I.R. 2008 S.C. 913.
21.
Moorhouse v. Lord, (1863) 10 H.L.C. 272.
12
22.
Municipal Council, Ratlam v. Vardichan, (1980) 4 S.C.C. 162.
Netai Bag & Ors. v. The State Of West Bengal & Ors., A.I.R. 2000
23.
S.C. 3313.
Prakash Mani Sharma, Tek Tamrakar et.al v. HMG/Nepal, (Writ
13
24.
No.121, 2060).
25.
Rajiv Ranjan Singh v. Union of India, (2006) 6 S.C.C. 161.
26.
Ramjas Foundation v. Union of India, A.I.R. 1993 S.C. 852.
27.
S.P.Gupta v. Union of India, A.I.R. 1982 S.C. 149.
State of Karnataka & Anr. v. All India Manufacturers Organization &
28.
Ors., A.I.R. 2006 S.C. 1846.
State of Rajasthan v. Rajasthan Civil Services Appellate Tribunal,
10
29.
(1993) 2 W.L.C. 140 (Raj).
30.
State Of Uttaranchal v. Balwant Singh Chaufal, A.I.R. 2010 S.C. 2550.
31.
Union of India v. Government of Tamil Nadu, (2013) 4 M.L.J. 721.
32.
Y.S. Vijaya v. Union of India & Ors. (2012).
33.
Yogesh Bhardwaj v. State of U.P., (1990) 3 S.C.C. 355.
12
-MEMORANDUM FOR THE RESPONDENTSVI
- Respondents-
STATUTES AND RULES CITED

S. No.
BIBLIOGRAPHICAL INFORMATION
1.
The Constitution of Nepal, 2015
2.
Nepal Treaty Act, 1970
3.
Convention on the Rights of Child, Jan. 26, 1990, 1577 U.N.T.S. 3.
4.
Indigenous and Tribal Peoples Convention, Sep. 14, 2007, C169.
5.
Covenant on Economic, Social and Cultural Rights, May 14, 1991, 993 U.N.T.S. 3.
6.
International Covenant on Civil and Political Rights, May 14, 1991, 999 U.N.T.S. 171
7.
Convention on Elimination of All Form of Discrimination Against Women, Feb. 5,

1991, 1249 U.N.T.S. 13.
-MEMORANDUM FOR THE RESPONDENTSVII
- Respondents-
ARTICLES REFERRED
S. NO.
1.
BIBLIOGRAPHICAL INFORMATION
COMM. FOR FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES, CONSTITUENT
ASSEMBLY, REP. ON THEMATIC CONCEPT PAPER AND PRELIMINARY DRAFT (2009-10).
5.
D. MCCOURTIE, NEPAL: UN POLITICAL CHIEF ENCOURAGES DIALOGUE AMONG LEADERS

TO OVERCOME DIFFERENCES ON CONSTITUTION (JAN. 9, 2016), AVAILABLE AT
HTTP://WWW.UN.ORG/APPS/NEWS/STORY.ASP?NEWSID=52970#.VSYQJLR97IU
DEBATING ELECTORAL SYSTEMS FIRST-PAST-THE-POST VS PROPORTIONAL
REPRESENATION.., MOSTLY ECON. (FEB. 22, 2016, 5:34 PM)
HTTPS://MOSTLYECONOMICS.WORDPRESS.COM/2014/06/02/DEBATING-ELECTORALSYSTEMS-FIRST-PAST-THE-POST-VS-PROPORTIONAL-REPRESENTATION/.
GAUTAM SEN, CONSTITUTIONAL AND POLITICAL EVOLUTION IN NEPAL: DANGERS OF
FEDERALISM, INST. FOR DEF. STUD. & ANALYSES (FEB. 22, 2016, 5:37 PM),
http://www.idsa.in/idsacomments/constitutionalandpoliticalevolutioninnepal_gautamse
n_280512.
KRISTIN A. COLLINS, ILLEGITIMATE BORDERS: JUS SANGUINIS CITIZENSHIP AND THE
LEGAL CONSTRUCTION OF FAMILY, RACE, AND NATION, 123 YALE L.J. 2134, (2014).
6.
RESTRUCTURING OF THE STATE AND DISTRIBUTION OF STATE POWER COMMITTEE,

CONSTITUENT ASSEMBLY, REP. ON PRELIMINARY DRAFT, PT. 9(3)(3) (2007).
7.
SECRETARY GENERAL BAN KI-MOON, ADDRESS AT THE CONSTITUENT ASSEMBLY OF

NEPAL, KATHMANDU (NOV. 1, 2008).
8.
SUZANNE DOVI, POLITICAL REPRESENTATION, STANFORD ENCYCLOPEDIA PHIL. AVAILABLE

AT http://plato.stanford.edu/entries/political-representation/ (LAST VISITED FEB. 22,
2016).
2.
3.
4.
-MEMORANDUM FOR THE RESPONDENTSVIII
- Respondents-
BOOKS REFERRED
1. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, ( HONBLE MR. JUSTICE
C.K. THAKKER ED., HONBLE MR. JUSTICE S.S. SUBRAMANI ED., HONBLE MR. JUSTICE T.S.
DOABIA ED., HONBLE MR. JUSTICE B.P. BANERJEE ED., VOL. 2 LEXIS NEXIS BUTTERWOTHS
WADHWA, NAGPUR 1950) (2009).
2.
DR. SUBHASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA (2008 ED., VOL. 1 UNIVERSAL
LAW PUBLISHING CO. 2008).
3.
DURGA DAS BASU, CONSITUIONAL LAW OF INDIA (8th ED., LEXISNEXIS BUTTERWORTHS
WADHWA REPRINT, 2011).
4.
H. M. SEERVAI, CONSTITUIONAL LAW IN INDIA, (FOURTH ED., VOL. 1, UNIVERSAL LAW

PUBLISHING CO. PVT. LTD. 2007) (1967).
5.
M.P. JAIN, INDIAN CONSTITUIONAL LAW, (6th ED., LEXISNEXIS BUTTERWORTHS WADHWA,
2010).
6.
N.K. ACHARYA, THE CONSTITUTION OF INDIA (3rd ED., ASIA LAW HOUSE 2011).
7.
V.N. SHUKLAS, CONSTITUTION OF INDIA (REPRINT. 11th ED., EASTERN BOOK COMPANY
2011).
8.
R.P. KATARIA, SANJAY MISHRA, LAW RELATING TO CITIZENSHIP, PASSPORT & FOREIGNERS.
9.
JAMES FAWCETT & JANEEN M. CARRUTHERS, CHESHIRE, NORTH & FAWCETT PRIVATE
INTERNATIONAL LAW 155 (14th ED. 2008).
10. N.S. BINDRA, INTERPRETATION OF STATUTES (11th ED. 2014).

11. G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (13th ED. 2012).
12. MADHUSUDHAN SAHARAY, ADOPTION OF FOREIGN DOCTRINE BY SUPREME COURT IN
INTERPRETATION OF THE CONSTITUTION (2011).
-MEMORANDUM FOR THE RESPONDENTSIX
- Respondents-
13. ACHARYA DR. DURGA DAS BASU , COMPARATIVE CONSTITUTIONAL LAW BY LEXIS NEXIS
BUTTERWORTHS WADHWA NAGPUR 2nd EDITION 2010 REPRINT.
14. SUNIL KHILANI, VIKRAM RAGHAVAN, ARUN K. THIRUVENGADAM, COMPARATIVE
CONSTITUTIONALISM IN SOUTH ASIA EDITED BY OXFORD UNIVERSITY PRESS 2013.
15. SURENDRA BHANDARI, SELF DETERMINATION & CONSTITUTION MAKING IN NEPAL:
CONSTITUENT ASSEMBLY, INCLUSION & ETHNIC FEDERALISM SPRINGER SCIENCE &
BUSINESS 2014.
16. V. R. RAGHAVAN, NEPAL AS A FEDERAL STATE: LESSONS FROM INDIAN EXPERIENCE, V.I.J.
BOOKS INDIA PVT. LTD. 2013.
17. JACQUELINE BHABHA, CHILDREN WITHOUT A STATE: A GLOBAL HUMAN RIGHTS
CHALLENGE, MIT PRESS 2011.
18. HARI BANSH TRIPATHI, FUNDAMENTAL RIGHTS AND JUDICIAL REVIEW IN NEPAL:
EVOLUTION & EXPERIMENTS PAIRAVI PRAKASHAN, 2002.
19. MAHENDRA LAWOTI, TOWARDS A DEMOCRATIC NEPAL: INCLUSIVE POLITICAL INSTITUTIONS
FOR A MULTICULTURAL SOCIETY SAGE, 2005.
DATABASES REFERRED
http://www.manupatra.com
http://www.westlawindia.com
https://www.scconline.in/default.aspx
-MEMORANDUM FOR THE RESPONDENTSX
-Statement of Jurisdiction-
- Respondents-
STATEMENT OF JURISDICTION
The counsels on behalf of the appellants, in the matter of Representatives of Nadhesis v.
State of Napasia, have filed the present appeal against the order of the Honble High Court,
under Article 133 (5)1 of the Constitution of Napasia, 2007.
It sets forth the facts, contentions and arguments in the present case in the jurisdiction of
the appellant.
NEPAL CONST. art. 133, cl. 5.
-MEMORANDUM FOR THE RESPONDENTSIX
-Statement of Facts-
- Respondents-
STATEMENT OF FACTS
1. Napasia, which was a monarchical state up to 2005, changed the form of government
through referendum, and constituted a Constituent Assembly through Electoral Poll, in
which the Napasia People Party (NPP) got the majority. The Constitution of Napasia,
drafted by the Second Constituent Assembly and endorsed by 84% lawmakers, now
governs the country, w.e.f 20/09/2007. However, an immediate virtual blockade of all
Napasia-Indianas border checkpoints followed the promulgation of the Constitution.
2. The Constitution was said to be gender discriminatory, making it difficult for women to
pass on citizenship to their children. An ongoing protest since August 2007, by the
Nadhesi and indigenous population, complains about the federal delineation of new
states, leading to the loss of political representation. The Napasia government and the
protesters have been criticized for human rights violation owing to death of at least 45
people. The Constitution discriminates against the Nadhesis of Indianas origin and
protects the state from being overwhelmed by Indiana immigrants, which are the contrary
issues in the draft Constitution and the final Constitution, which was passed.
3. The citizenship provisions of the new Constitution discriminate against children born to
Nadhesis, who often marry with Indianas. As per the new proportional representation
rules and the borders of the federal provinces, they have fewer seats reserved which
diminish their power in national politics and deprive them of majority in any province.
The
Nadhesi
people
have
denied
the
Adult
Franchise
in
the
new
Constitution of Napasia to adhere the adult franchise, Nadhesi approached the HC by

way of PIL but their petition was rejected. Thereafter they filed an appeal before the
Supreme Court of Napasia against the order of the High Court.
-MEMORANDUM FOR THE RESPONDENTSX
-Statement of Issues-
- Respondents-
STATEMENT OF ISSUES
The following issues are presented before the Honble Supreme Court of Napasia :1. WHETEHER THE PRESENT APPEAL IS MAINTAINABLE.
1.1 The appellants lack the locus standi to file Public Interest Litigation.
1.2 Policy decisions cannot be challenged.
2. WHETHER THE CONSTITUTION OF NAPASIA PROVIDES POLITICAL
REPRESENTATION TO THE NADHESIS.
2.1 Granting of proportional representation to the people.
2.2 State Restructuring is in accordance with the principles of the Constitution.
3. WHETHER THE PROVISIONS AS PROVIDED IN THE CONSTITUTION OF
NAPAISA ARE DISCRIMINATORY IN NATURE.
-MEMORANDUM FOR THE RESPONDENTSXI
-Summary of Pleadings-
- Respondents-
SUMMARY OF PLEADINGS
1. WHETHER THE PRESENT APPEAL IS MAINTAINABLE.
The present appeal is not maintainable, as it is an appeal raised out of a politically
motivated PIL and the appellants themselves have not approached the Honble
Supreme Court with clean hands. Further, the delineation of boundaries, is a policy
decision that can only be challenged if it has been made arbitrarily, which is not so in
the present case.
2. WHETHER
THE
CONSTITUTION
OF
NAPASIA
PROVIDES
POLITICAL REPRESENTATION
TO THE NADHESIS.
The provisions in the Constitution take care of the fact that appropriate inclusive
political representation is provided to minorities in each state, laying regard to the
geography and territorial balance. Also, the restructuring of states is done in
accordance with the principles enshrined and adopted in the Constitution and the
demands of the Appellants cannot be fulfilled without going against such principles.
3. WHETHER
THE
PROVISIONS
AS PROVIDED IN THE
CONSTITUTION
OF
NAPASIA
ARE
DISCRIMINATORY IN NATURE.
The Constituent Assembly has drafted these provisions with a clear intention to grant
citizenship to those, who have the required animus to stay in the country for rest of
their life, and these are in line with the international laws, the doctrine of Parens
Patrie and the universal concept of nationality, and concept of matrimonial home and
its international obligations. Further, they are applicable to all the people in general
-MEMORANDUM FOR THE RESPONDENTSXII
-Summary of Pleadings-
- Respondents-
and not to a particular set or class of society. Thereby, the citizenship provisions shall
not be misconstrued and shall be interpreted in positive light.
-MEMORANDUM FOR THE RESPONDENTSXIII
-Arguments Advanced-
- Respondents-
ARGUMENTS ADVANCED
1. THE PRESENT APPEAL IS MAINTAINABLE.
It is humbly submitted that, the Nadhesis have approached the Honble Supreme Court of
Napasia under Article 133 (5)2 of the Constitution of Napasia, 2015 which empowers the
Honble Supreme Court of Napasia to take into consideration the matters of public
importance3 involving questions of interpretation of the Constitution.
1.1. The Appellants lack the locus standi to file the Public Interest Litigation.
1. It may be stated that the rule of locus standi has been diluted in cases of PIL,4 but such
relaxation of the rule of locus standi does not give the right to any person or meddlesome
interloper to approach the court under the guise of PIL.5 A PIL is not meant to advance
political gains.6 A person approaching the Honble court by a desire to win cheap
notoriety or cheap popularity7 shall not be entitled to file PIL.8
2. It is an absolute obligation9 and has repeatedly been reiterated by this Court that when a
person approaches the court of equity in exercise of extraordinary jurisdiction, he should
approach the court not only with clean hands but with clean mind, heart and with clean
Municipal Council, Ratlam v. Vardichan, (1980) 4 S.C.C. 162.
State Of Uttaranchal v. Balwant Singh Chaufal, A.I.R. 2010 S.C. 2550.
S.P.Gupta v. Union of India, A.I.R. 1982 S.C. 149.
Rajiv Ranjan Singh v. Union of India, (2006) 6 S.C.C. 161.
M/S Holicow Pictures Pvt Ltd. v. P C Mishra, A.I.R. 2008 S.C. 913.
Ashok Kumar Pandey v. State of West Bengal, A.I.R. 2004 S.C. 1923.
Kishore Samrite v. State of U.P. & Ors., (2013) 2 S.C.C. 655.
-MEMORANDUM FOR THE RESPONDENTS1
- Respondents-
objectives.10 The principle of public policy, i.e. ex dolo malo non oritur actio, says that
no court will lend its aid to a man who founds his cause of action upon an immoral or an
illegal act.11 If there is no candid disclosure of relevant and material facts or the
petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold
without considering the merits of the claim.12 In the present case, the Appellants have not
disclosed in their submission that, the representatives of the Nadhesi community have
been condemned by international organisation, as they were responsible for violation of
human rights during the protests that killed near about 8 security personals.13
3. It is further submitted that the present appeal is a frivolous appeal, which does not
involve any matter of public importance and the question of interpretation of constitution.
It is an appeal that augmented out of a PIL, which was politically motivated14 and hence
is not maintainable in the Honble Supreme Court of Napasia. The demand for a separate
province for Nadhesis is ambiguous and primarily aimed at conserving the political
strength of the ambitious Nadhesi politicians from the region.
4. As a matter of fact, the present constitution is the most rigorous, transparent, democratic,
inclusive and participatory process made by the Constituent Assembly, through a
participatory process. Every word and every sentence of the Constitution was discussed,
debated, cross-referenced, and improved to the best possible outcome by the most
10
Ramjas Foundation v. Union of India, A.I.R. 1993 S.C. 852.
11
Holman v. Johnson, (1775) 1 COWP 341.
12
Dalip Singh v. State of U.P., (2010) 2 S.C.C. 114.
13
2, Moot Proposition.
14
D. McCourtie, Nepal: UN Political Chief Encourages Dialogue Among Leaders to Overcome Differences on
Constitution (Jan. 9, 2016), available at http://www.un.org/apps/news/story.asp?NewsID=52970#.VsYqJLR97IU .
- Respondents-
inclusive legislative body in the countrys history.15 Finally, this Constitution was
adopted by an overwhelming majority in the Constituent Assembly.16
5. An era has passed since the state followed a Monarchial set up, but now it has embarked
upon the principles of Democracy.17 Every citizen has been provided the opportunity to
take part in every political issue of the nation. The provisions are made, in order to
recognize the citizenship of those living in Napasia, and having obtained or are going to
obtain Napasian citizenship, committing them to participate in the political affairs of
Napasia and fulfil different duties since the citizen are inhabitants of the country.18
6. It is a humble submission on the part of the Respondents that the court should not allow
its process to be abused by politicians to delay the implementation of a public project,
which is in larger public interest,19 nor can the court allow anyone to gain a political
objective.20
7. Hence, the Respondents submit that the Appellants have no locus standi in the present
appeal as it is filed without public interest, to further their political gains and with
unclean hands.
15
Secretary General Ban Ki-moon, Address at the Constituent Assembly of Nepal, Kathmandu (Nov. 1, 2008).
16
17
Id.
18
COMM. FOR FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES, CONSTITUENT ASSEMBLY, REP. ON THEMATIC
CONCEPT PAPER & PRELIMINARY DRAFT (2009-10).
19
State of Karnataka & Anr. v. All India Manufacturers Organization & Ors., A.I.R. 2006 S.C. 1846.
20
Y.S. Vijaya v. Union of India & Ors. (2012).
- Respondents-
1.2. Federal Delimitation is a policy decision and cannot be challenged.

8. It is submitted that the general principles which guide the government in the management
of public affairs or the legislature in its measures, is termed as a policy.21 This also
includes within its ambit, a law, an ordinance or a rule of law as formed by the
legislature.22 The delineation of states and delimitation of electoral constituencies are
policy decisions and cannot be challenged in the court of law as per the Constitution of
Napasia, 2015.23
9. It is a settled principle that a policy decision can only be challenged if it is arbitrary or on
the grounds of malafide, unreasonableness, against public interest etc.24 In the present
case, the impugned article, i.e. Article 286 (7) of the Constitution of Napasia, 2015, is in
the process of nation-building and a national identity and where a final Constitution has
been adopted after the failure of the first Constituent Assembly.25 In such a situation
Government is entitled to make pragmatic adjustments and policy decision which may be
necessary or called for under the prevalent peculiar circumstances.26
10. Such a provision in the Constitution has been enshrined after due considerations to its
future scope and prospects which can be ascertained from the Constituent Assembly
Debates,27 and hence in order to give effect to this, another provision has been added by
21
BRYAN A. GARNER, BLACKS LAW DICTIONARY 1196 (8th ed. 2004).
22
Id.
23
24
Union of India v. Government of Tamil Nadu, (2013) 4 M.L.J. 721.
25
26
Netai Bag & Ors. v. The State Of West Bengal & Ors., A.I.R. 2000 S.C. 3313.
27
COMM. FOR FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES, CONSTITUENT ASSEMBLY, REP. ON THEMATIC
CONCEPT PAPER & PRELIMINARY DRAFT (2009-10).
- Respondents-
the legislature, keeping in mind the dynamic nature of society, where the constituencies
that are delimited, are reviewed after every twenty years.28 The impugned provision is
therefore not arbitrary in any nature, as the Constitution provides for the safeguard
mechanism which ensures the checks and balances in the system.
11. In the present case, the policy decision is made by a competent authority and is neither
arbitrary nor unconstitutional; hence it cannot be challenged in the court of law 29 because
it is only on the grounds of illegality, or as being contrary to law or any other
constitutional provision, can a public policy be challenged.30
12. Hence, it is contended before this Honble court that, the policy decision by the Election
Constituency Delimitation Commission cannot be challenged under the ambit of PIL.
28
29
K. Ramachandran v. Central University of Pondicherry (2011).
30
Airports Authority Employees Union v. Union of India (2014).
- Respondents-
2. THE CONSTITUTION OF NAPASIA PROVIDES POLITICAL REPRESENTATION TO THE

NADHESIS.
13. It is submitted before the Honble Court that while restructuring the state, the
Constitution takes care of the fact that Nadhesis and the other ethnic and indigenous
communities of Napasia get proportionate and inclusive representation, and they are
given equal opportunities to represent their community interests in the areas of decision
making, governance etc.31 This is nothing but the consideration of the voices of the
citizens and their opinions in the public policy making decisions.32
14. It is impertinent to note that the Constitution provides for the establishment of a
Constitutional Commission33, for the upliftment of communities such as Nadhesis, which
shall work for the representation and the participation of such communities in the state
organs, and put forth suggestions in front of the state to implement policies and programs
by monitoring them.34
2.1 Constitution Grants proportional representation to the people.
15. It is submitted that the state of Napasia incorporates the principle of inclusive
proportional representation and first past the post system in its Constitution by
determining electoral constituencies on the basis of geography and population.35 The
31
NEPAL CONST. art. 52, j, cl. 12.
32
Suzanne Dovi, Political Representation, STANFORD ENCYCLOPEDIA PHIL. available at

http://plato.stanford.edu/entries/political-representation/ (last visited Feb. 22, 2016).
33
34

RESTRUCTURING OF THE STATE AND DISTRIBUTION OF STATE POWER COMMITTEE, CONSTITUENT ASSEMBLY, REP.
ON PRELIMINARY DRAFT, pt.
35
9(3)(3) (2007).
NEPAL CONST. art. 286, cl. 5
- Respondents-
former ensures the distribution of seats corresponding to the total number of votes cast in
each party and the latter is the one where the candidate getting the highest number of
votes, gets elected.36 Such dual mechanism of selecting the members of the House of
Representatives is adopted to ensure the benefits accruing out of both the systems.37
16. By adhering to these principles, the state ensures that no community, especially the
minority communities or the indigenous tribes, get excluded or overlooked when it comes
to representation of the minorities in the policy making decisions.38 Hence, laying regard
to the geography and the territorial balance, a special provision ensures the proportional
representation from the minorities and other backward regions, for the election to the
House of Representatives,39 thereby upholding the minority and indigenous rights, it
promises to the people.40
17. The state does not allow a naturalized citizen to hold certain official posts.41 However, if
such people are able to renounce their allegiance and fidelity to the foreign nation
completely, they are allowed to contest for such political posts. Such an arrangement is
done so as to safeguard the national interest from any type of foreign manipulation. But,
this does not deny the right to the entire Nadhesi community to represent itself as a part
of government.
36
Debating electoral systems First-past-the-post vs Proportional Represenation.., MOSTLY ECON. (Feb. 22, 2016,
5:34 PM) https://mostlyeconomics.wordpress.com/2014/06/02/debating-electoral-systems-first-past-the-post-vsproportional-representation/.
37
38
39
40
NEPAL CONST. art. 42; art. 52, j, cl. 8; art. 52, j, cl. 10.
41
NEPAL CONST. art. 289, cl. 12; art. 289, cl. 2.
- Respondents-
2.2 State Restructuring is in accordance with the principles of the Constitution.

18. The Nadhesi community is demanding for restructuring the state as they fear the existing
demarcation will affect their political representation. Their main protest is over the
federal delineation of the state as proposed in the new Constitution, which in their
opinion, would end up giving them a status of perpetual minority in Napasia by not
giving them a substantive political representation, which is based on ethnic-cum-sociocultural identities.42 Such demands on the part of a community cannot be fulfilled by a
state without opposing the principles laid down in the supreme law i.e., the Constitution.
19. The existing construction and delineation of the states is done in accordance with the
widely accepted principles that are enshrined in the Constitution. These principles include
the concepts like unity in diversity43, elimination of discrimination on the basis of class,
caste, region, religion etc.44 Such principles which are given in the Preamble and form an
integral part of the Constitution cannot be neglected or overlooked by the government or
its policies.
20. On the other hand, if the contentions of the appellants are fulfilled, not only will it
disregard the basic guiding principles of the Constitution, but also the adaptation of new
states will lead to the promotion of tribulations like casteism and regionalism, which are
detrimental to the society and shake the foundations of a strong federal structure.
42
Gautam Sen, Constitutional and Political Evolution in Nepal: Dangers of Federalism, INST. FOR DEF. STUD. &
ANALYSES (Feb. 22, 2016, 5:37 PM),
http://www.idsa.in/idsacomments/ConstitutionalandPoliticalEvolutioninNepal_GautamSen_280512.
43
NEPAL CONST. pmbl.
44
NEPAL CONST. pmbl.
- Respondents-
3. THE CITIZENSHIP PROVISIONS ARE NOT DISCRIMINATORY IN NATURE.

21. It is submitted that the provisions of citizenship are drafted keeping in mind the needs of
the state and its diverse population. In present context, the provision is made in order to
establish Jus Sanguinis i.e. heredity,45 as the basis of obtaining Napasian citizenship, and
to determine the qualification of the people who can obtain hereditary citizenship which
is followed in majority of the nations.
22. The citizenship provision subject to the federal law46 is providing two types of citizenship
to the residents of the state, i.e. naturalized and descent. The people eligible for
citizenship by descent are children born to Napasian citizen either man or woman,47 child
born to the Napasian man and foreign woman, child found in the state and whereabouts
of whose family is not known,48 child born to Napasian woman whose father is not
known,49 child born to a Napasian woman and foreign man provided he has acquired
citizenship of Napaisa.50
23. Whereas these provisions grant naturalized citizenship of Napasia to the child born to a
Napasian woman and a foreign man,51 child born to a woman, whose father is found to be
foreigner. In the present case the Nadhesis are contesting the provisions of Citizenship as
being discriminatory to them whereas it is a well settled principle of construction that
45
Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race,
and Nation, 123 YALE L.J. 2134, (2014).
46
NEPAL CONST. art. 11.
47
48
49
50
NEPAL CONST. art. 11, cl. 7; art. 11, cl. 8.
51
- Respondents-
words in a statute are designedly used and such an interpretation must be avoided, which
would render the provisions either nugatory or part thereof otiose.52 Constitution is law of
the land, which is equally applicable to all. The constitution does not provide for any
special provision or interpretation which is applicable to Nadhesis in this regard and
therefore, such an interpretation done by the Nadhesis is against the general rule of
interpretation.
24. The legislature is deemed not to waste its words or to say anything in vain. 53 As per the
literal rule of interpretation, the judiciary should always stick to the legislative intent and
language while interpreting any law.54 The Constituent Assembly has been very clear,
precise and unambiguous in its language while drafting the provisions and has left no
vacuum for judiciary to intervene and interpret. The provision cannot apply to a specific
community, unless specified otherwise,55 thus the impugned article applies to each and
every citizen of the country equally and not just Nadhesis.
25. Article 11 (2) states that, persons who have their permanent domicile56 in Napasia shall
be deemed to be citizen of the Napasia by descent, and the children of such men or
women shall also be conferred citizenship by descent. Whereas, Article 11 (5) refers to
the child who has domicile in Napasia but his/her father is not traced even then the child
52
N.S. BINDRA, INTERPRETATION OF STATUTES 157 (11th ed. 2014).
53
State of Rajasthan v. Rajasthan Civil Services Appellate Tribunal, (1993) 2 W.L.C. 140 (Raj).
54
G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION 184 (13th ed. 2012); Padam Prasad v Emperor A.I.R
1929 Cal 617, p630.
55
MADHUSUDHAN SAHARAY, ADOPTION OF FOREIGN DOCTRINE BY SUPREME COURT IN INTERPRETATION OF THE

CONSTITUTION (2011).
56
Kedar Pandey v. Narain Bikram Shah, A.I.R. 1966 S.C. 160.
- Respondents-
shall be conferred citizenship by descent; provided that if the father is found to be a

foreigner then it would automatically be converted to naturalized citizenship.
26. In the instant case, both the provisions are to be harmoniously constructed57 in order to
give a special reference to the proviso and thus read it in context and not in isolation.58 In
case of a single father and single mother, the child gets the citizenship by descent, but if
the father is held to be a foreigner, then the same is converted to naturalized citizenship.59
27. It is further submitted that the Constitution of Napasia is in consonance with the
international law as domicile of a child always flows from the domicile of his father.60
These laws are followed only to the point where they do not contradict the provisions of
the Constitution.61 It was specifically held in the case of Achut Prasad Kharel v.
HMG/Nepal et. al
62
that the state recognizes the citizenship by virtue of lineage, based
on the citizenship of father. Furthermore, it is accepted norm of the society that a woman
leaves her paternal house after marriage to live in her matrimonial house;63 so if the
woman and the child, do not have an intention to live in the country, then the state has no
valid reason to confer them with the citizenship by descent. A child born out of such
wedlock is hence given naturalized citizenship.64
28. Further, Art 11 (7) states that a child born out of wedlock of a Napasian women and a
foreigner man, may acquire naturalized citizenship subject to conditions that he/she is
57
58
CIT v. Hindustan Bulk Carriers, (2003) 179 C.T.R. (S.C.) 362.

Balachandra Anantrao Ravki & Ors. v. Ramchandra Tukaram & Ors., (2002) 8 S.C.C. 616.
59
60
Forbes v. Forbes, (1854) Kay 341.
61
Chandra Kant Gyawali v. HMG et. al. 2059.
62
Writ No. 3504, 2061 BS.
63
Supra note 45.
64
Jabir Yasin v. Home Ministry HMG/Nepal, et.al (Writ No. 3503, 2055 B.S).
- Respondents-
having domicile of Napasia and has not acquired citizenship of any foreign country. This
provision has to be read with proviso wherein it is stated that, if the father and mother
both are citizens of Napasia then the child may acquire citizenship by descent. The father
needs to be citizen of Napasia as per Art 11 (8) in order to enable the proviso. Thereby it
is possible for child to attain citizenship by descent.
29. To understand the meaning of the impugned articles, they are to be read in consonance
with each other. In order to interpret the provisions where matrimonial relationship is
involved, the social conditions prevalent in the society have to be considered.65 Further,
the term used herein is domicile that stands for permanent home, which a combination
of residence and intention.66
30. Further, any person claiming to be a citizen needs to have a domicile in the country.67
Domicile is very important in order to establish the animus manendi68, to stay in the
country.69 The animus manendi, demands that the person whose domicile is the object of
the inquiry should have formed a fixed and settled purpose of making his principal or
sole permanent home in the country of residence, or, in effect, he should have formed a
deliberate intention to settle there.70 Hence, it is not in interest of Napasia to grant
citizenship by descent to a person with fluctuating intentions.
65
Fuzlunbi v. Khader Vali, (1980) 4 S.C.C. 125.
66
Yogesh Bhardwaj v. State of U.P., (1990) 3 S.C.C. 355.
67
Abdul Satar Haji Ibrahim Patel v. State of Gujrat, A.I.R. 1965 S.C. 810.
68
Louis De Raet v. Union of India, A.I.R. 1991 S.C. 1886.
69
Moorhouse v. Lord, (1863) 10 H.L.C. 272.
70
Kedar Pandey v. Narain Bikram Sah, A.I.R. 1966 S.C. 160.
- Respondents-
31. Furthermore, the object of these articles is not to frame anything like a code of nationality
law. Article 11 (4) is inserted on the basis of the Doctrine of Parens Patriae71, which is a
belief that the state protects those who have no one.72 The citizenship of the minors,
whose parents are found to be foreign nationals are automatically changed to naturalized,
but citizenship by descent is granted to those who are found in the territory of Napasia
and their parents cannot be traced. Therefore, it protects the minors73 from being stateless
and thereby adheres to the CRC, which specifically makes it a prerogative of the state to
ensure that no child remains stateless.74
32. In light of above arguments the Honble Court should identify that there exists a justified
classification, which is made in consonance with domestic laws and the international
conventions,75 The Constitution of Napasia grants right to equality but it does not forbid
reasonable classification.76 Hence it is submitted that the provisions made, follow the true
spirit of the Constitution and are not discriminatory in nature.
71
Heller v. DOE, (509) U.S. 312 (1993).
72
Prakash Mani Sharma, Tek Tamrakar et.al v. HMG/Nepal, (Writ No.121, 2060).
73
Citizenship Act, No. 25 of 2006, 2(a) (2006).
74
Convention on the Rights of Child art. 7, Jan. 26, 1990, 1577 U.N.T.S. 3.
75
International Covenant on Civil and Political Rights May 14, 1991, 999 U.N.T.S. 171; International Covenant on
Economic, Social and Cultural Rights May 14, 1991, 993 U.N.T.S. 3; Convention on Elimination of All Form of
Discrimination Against Women Feb. 5, 1991, 1249 U.N.T.S. 13.
76
Budhan Choudhary v. State of Bihar, A.I.R. 1955 S.C. 191.
-Prayer-
- Respondents-
PRAYER
Wherefore, in the light of facts presented, issues raised, arguments advanced and authorities
cited, counsels on behalf of Respondents humbly pray before this Honble Court to kindly
declare and adjudge that:
1. To dismiss the appeal filed before the court;
2. To uphold and declare that federal delineation is constitutionally valid;
3. To uphold and declare that provisions of citizenship are not discriminatory in nature.
And pass any other order which this Honble Court may deem it fit in the light of justice, equity
and good conscience.
And for this act of kindness of your lordship the respondents shall as duty bound ever pray.
On behalf of Republic of Napasia

Sd.
Counsels for the Respondents
-MEMORANDUM FOR THE RESPONDENTSXIV

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APPEAL NO: __________/2016

MEMORANDUM FOR THE RESPONDENTS

PLEADINGS AND AUTHORITIES

WHETHER THE PRESENT APPEAL IS MAINTAINABLE.

Federal Delimitation is a policy decision and cannot be challenged.

WHETHER THE CONSTITUTION OF NAPASIA PROVIDES POLITICAL

Constitution Grants proportional representation to the people. -

State Restructuring is in accordance with the principles of the Constitution. 8

WHETHER THE CITIZENSHIP PROVISIONS ARE DISCRIMINATORY IN NATURE.

REPRESENTATION TO THE NADHESIS.

-MEMORANDUM FOR THE RESPONDENTSI

All India Reporter

Cowper's King's Bench Reports

Convention on the Rights of Child

Hastings Law Cases

Madras Law Journal

National Capital Territory

Nepal Kanoon Patrika

Public Interest Litigation

Supreme Court Cases

United States of America

Western Law Cases

-MEMORANDUM FOR THE RESPONDENTSIII

Airports Authority Employees Union v. Union of India (2014).

Balachandra Anantrao Ravki & Ors. v. Ramchandra Tukaram & Ors.,

Budhan Choudhary v. State of Bihar, A.I.R. 1955 S.C. 191.

Chandra Kant Gyawali v. HMG et. al. 2059.

CIT v. Hindustan Bulk Carriers, (2003) 179 C.T.R. (S.C.) 362.

Dalip Singh v. State of U.P., (2010) 2 S.C.C. 114.

Forbes v. Forbes, (1854) Kay 341.

Fuzlunbi v. Khader Vali, (1980) 4 S.C.C. 125.

Heller v. DOE, (509) U.S. 312 (1993).

Holman v. Johnson, (1775) 1 COWP 341.

K. Ramachandran v. Central University of Pondicherry (2011).

Kedar Pandey v. Narain Bikram Sah, A.I.R. 1966 S.C. 160.

-MEMORANDUM FOR THE RESPONDENTSV

Kedar Pandey v. Narain Bikram Shah, A.I.R. 1966 S.C. 160.

Kishore Samrite v. State of U.P. & Ors., (2013) 2 S.C.C. 655.

Louis De Raet v. Union of India, A.I.R. 1991 S.C. 1886.

Moorhouse v. Lord, (1863) 10 H.L.C. 272.

Municipal Council, Ratlam v. Vardichan, (1980) 4 S.C.C. 162.

Rajiv Ranjan Singh v. Union of India, (2006) 6 S.C.C. 161.

Ramjas Foundation v. Union of India, A.I.R. 1993 S.C. 852.

S.P.Gupta v. Union of India, A.I.R. 1982 S.C. 149.

State of Karnataka & Anr. v. All India Manufacturers Organization &

State Of Uttaranchal v. Balwant Singh Chaufal, A.I.R. 2010 S.C. 2550.

Union of India v. Government of Tamil Nadu, (2013) 4 M.L.J. 721.

Y.S. Vijaya v. Union of India & Ors. (2012).

Yogesh Bhardwaj v. State of U.P., (1990) 3 S.C.C. 355.

-MEMORANDUM FOR THE RESPONDENTSVI

STATUTES AND RULES CITED

The Constitution of Nepal, 2015

Nepal Treaty Act, 1970

Convention on the Rights of Child, Jan. 26, 1990, 1577 U.N.T.S. 3.

Indigenous and Tribal Peoples Convention, Sep. 14, 2007, C169.

Convention on Elimination of All Form of Discrimination Against Women, Feb. 5,

-MEMORANDUM FOR THE RESPONDENTSVII

D. MCCOURTIE, NEPAL: UN POLITICAL CHIEF ENCOURAGES DIALOGUE AMONG LEADERS

RESTRUCTURING OF THE STATE AND DISTRIBUTION OF STATE POWER COMMITTEE,

SECRETARY GENERAL BAN KI-MOON, ADDRESS AT THE CONSTITUENT ASSEMBLY OF

SUZANNE DOVI, POLITICAL REPRESENTATION, STANFORD ENCYCLOPEDIA PHIL. AVAILABLE

-MEMORANDUM FOR THE RESPONDENTSVIII

H. M. SEERVAI, CONSTITUIONAL LAW IN INDIA, (FOURTH ED., VOL. 1, UNIVERSAL LAW