CU 04 Appellants.

st
1 CHANDIGARH UNIVERSITY
Team Code:
CU-04
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 APPELLANTS
-Table of Contents-
-Appellants-
TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
II
INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
XI
STATEMENT OF ISSUES
XII
SUMMARY OF PLEADINGS
XIII
PLEADINGS AND AUTHORITIES
1.
WHETHER THE PRESENT APPEAL IS MAINTAINABLE.
1.1
The Appellants have the Locus Standi.
1.2
Grounds of Appeal. -
2.
WHETHER THE FEDERAL DELINEATION OF THE BOUNDARY OF THE

-
STATES IS NOT CONSTITUTIONALLY VALID.
2.1
Constitution of Napasia does not ensure fair representation to Nadhesis.
2.2
Violative of Doctrine of Basic Structure. -
3.
WHETHER THE PROVISIONS REGARDING CITIZENSHIP ARE

CONSTITUTIONALLY VALID. -
10
10
3.1
The provisions pertaining to citizenship are violative of Article 18. -
3.2
Provisions pertaining to Citizenship are inconsistent with the
3.3
International Conventions to which Napasia is signatory.
11
The Citizenship provisions are violative of Article 42.
12
PRAYER
-MEMORANDUM FOR THE APPELLANTSI
XV
-List of Abbreviations-
-Appellants-
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 APPELLANTS II
-List of AbbreviationsId.
Ibid
L.J.
Law Journal
Ltd.
Limited
M.L.J.
M/S
-Appellants-
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 APPELLANTS III
-Index of Authorities-
- Appellants-
INDEX OF AUTHORITIES
CASES CITED
CASE NAME
S. NO.
Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, A.I.R. 1965 S.C.
1.
& Ors., A.I.R. 1981 S.C. 298.

Ashoka Kumar Thakur v. Union of India (UOI) & Ors., (2008) 6
3.
12
810.
Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India
2.
PAGE NO.
S.C.C. 1.
4.
Charan Lal Sahu v. Union of India, A.I.R. 1990 S.C. 1480.
5.
Davis v. Bandemer, 106 S. Ct. 2797.
6.
Ferreira v. Levinno & Ors., 1996 (1) SA 984 (CC) 241.
7.
I.C. Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643.
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, A.I.R. 3

8.
9.
10.
2004 S.C. 1815.

Janata Dal v. H.S. Chowdhary & Ors., (1992) 4 S.C.C. 305.
Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed &
Ors., A.I.R. 1976 S.C. 578.
11.
Kedar Pandey v. Narain Bikram Sah, A.I.R 1966. S.C. 160.
12
12.
Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.
Kumari Shrilekha Vidyarthi & Ors. v. State of U.P. & Ors., 1991 (1)
13.
SCC 212.
-MEMORANDUM FOR THE APPELLANTS IV
- Appellants-
L. Chandra Kumar v. Union of India & Ors., [1997] 228 I.T.R. 725
14.
15.
16.
(S.C.).
M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212.
12
Mahanadi Coalfields Ltd. & Anr. v. Mathias Oram & Ors., 2010 (11)
S.C.C. 269.
Parmananda Thakur v. Nepal Government, Prime Minister & Council
17.
14
of Ministers Office et al., N.K.P. (2065) 593.

Peoples Union for Democratic Rights v. Union of India & Ors., 1982
18.
(3) S.C.C. 235.

Ramsharan Autyanuprasi & Anr. v. Union of India & Ors., A.I.R. 1989 1
19.
S.C. 549.
Ramsharan Autyanuprasi & Anr. v. Union of India & Ors., A.I.R. 1989 4
20.
S.C. 549.
21.
Re Berubari Union Case, A.I.R. 1960 S.C. 845.
22.
S.R. Bommai & Ors. v. Union of India & Ors., [1994] 2 S.C.R. 644.
Sindhu Education Society & Anr. v. The Chief Secretary, Govt. of
23.
24.
25.
N.C.T. of Delhi & Ors. (2010).

State of U.P. v. Dr. Dina Nath Shukla & Anr., A.I.R. 1997 S.C. 1095.
Sunil Babu Pant v. Nepal Government, Prime Minister & Council of
14
Ministers Office et al., N.K.P. (2065) 485.

Sunil Babu Pant, Executive Director of Blue Diamond Society v.
26.
Nepal Government, Office of the Prime Minister and Council of

Ministers (2007).
-MEMORANDUM FOR THE APPELLANTS V
- Appellants-
Youth for unity and voluntary action v. State of Maharastra, A.I.R.

27.
1991 (Bom.) 60.
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 APPELLANTS VI
- Appellants-
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 APPELLANTS VII
- Appellants-
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 APPELLANTS VIII
- Appellants-
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 APPELLANTS IX
-Statement of Jurisdiction-
- Appellants-
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 APPELLANTS X
-Statement of Facts-
- Appellants-
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 APPELLANTS XI
-Statement of Issues-
- Appellants-
STATEMENT OF ISSUES
The following issues are presented before the Honble Supreme Court of Napasia :1. THE PRESENT APPEAL IS MAINTAINABLE.
1.1 The Appellants have the Locus Standi.
1.2 Grounds of Appeal.
2. THE FEDERAL DELINEATION
OF
THE
BOUNDARY
OF
THE
STATES
IS
NOT
CONSTITUTIONALLY VALID.
2.1 Constitution of Napasia does not ensure fair representation to Nadhesis.
2.2 Violative of Doctrine of Basic Structure
3. THE PROVISIONS REGARDING CITIZENSHIP ARE CONSTITUTIONALLY VALID.
3.1 The provisions pertaining to citizenship are violative of Article 18.
3.2 Provisions pertaining to Citizenship are inconsistent with the International
Conventions to which Napasia is signatory.
3.3 The Citizenship provisions are violative of Article 42.
-MEMORANDUM FOR THE APPELLANTS XII
-Summary of Pleadings-
- Appellants-
SUMMARY OF PLEADINGS
1. WHETHER THE PRESENT APPEAL IS MAINTAINABLE..
The present appeal is maintainable in the Supreme Court of Napasia, as the appellants
have a valid locus standi to represent the rights of Nadhesi Community. In addition to
this the present appeal highlights the fact that the question in the present appeal is of
public importance and involves interpretation of provisions of the Constitution.
OF
THE
BOUNDARY
OF
THE
STATES
IS
NOT
The constitution of Napasia provides for the federal delimitation of new states which
hamper the political representation of the people of Nadhesi community as such
delineation has made them a perpetual minority in Napasia and hence there exists an
immediate threat that the rights of the marginalised communities are jeopardised. The
constitution of Napasia also contains a specific section which keeps such federal
delineation of election constituencies outside the purview of judicial review, which is in
clear contradiction with the doctrine of basic structure.
The citizenship provisions of Constitution of Napasia are discriminatory in nature as they
discriminate against women, particularly Nadhesi women, to pass on citizenship to their
children. The children so born by virtue of Nadhesi women marrying a foreigner, are
given naturalized citizenship, because of which they are left ineligible to contest for
various Constitutional posts. Napasia, being signatory to various conventions prohibiting
discrimination, is obliged to not discriminate against gender. Whereas, it is denies
-MEMORANDUM FOR THE APPELLANTS
XIII
-Summary of Pleadings-
- Appellants-
citizenship by descent to persons who have domicile and make it difficult for women to
pass on citizenship herein. The citizens are treated as unequals on the very onset of the
Constitution, by not letting all of them contest for all the constitutional posts.

XIV
-Arguments Advanced-
- Appellants-
ARGUMENTS ADVANCED
1. THE PRESENT APPEAL IS MAINTAINABLE.
1. The present appeal has arisen out of the order given by the Honble High Court, in the case
where a Public Interest Litigation was filed by the representatives of Nadhesi community on
the grounds of denial of right to Adult Franchise. The provision pertaining to appeal is
important so as to prevent any miscarriage of justice.
1.1. The Appellants have the Locus Standi.
2. It is submitted that PIL is used as an effective tool to secure observance of constitutional or
basic human rights, which bestows the benefits and privileges upon the poor, downtrodden
and vulnerable sections of the society,2 who themselves are unable to recognise, and are not
capable enough to realise, their rights through enforcement mechanisms, set up by law.
3. Locus standi or standing to invoke jurisdiction of court3 is an important concept which
allows the victims or the aggrieved party to raise their concerns and enforce their rights
against the perpetrator in the court of law. The common rule of locus standi is relaxed in
cases of PIL so as to enable the court to look into the grievances and complaints on behalf of
the poor, deprived, illiterate and disabled who cannot vindicate their case.4
4. Public Interest Litigation5 is a part of the process of participatory justice, where any public
spirited entity can approach the court to ensure the protection of rights and interests of the
backward and vulnerable sections of the society. In a competition between courts and streets,
Peoples Union for Democratic Rights v. Union of India & Ors., 1982 (3) S.C.C. 235.
Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed & Ors., A.I.R. 1976 S.C. 578.
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 3835 (8th ed. 2008).
Ramsharan Autyanuprasi & Anr. v. Union of India & Ors., A.I.R. 1989 S.C. 549.

1
- Appellants-
the rule of law must win and therefore, the rule of locus standi has been liberalized to meet
the challenges of the times.6 In the present situation, there has been a gross violation of the
rights of the people of the Nadhesi community, who are poor, ignorant and socially or
economically backward, and therefore this appeal is filed so that their rights do not go
unnoticed or without redressal.7
5. Adult franchise is a well established principle of modern participatory democracy, and in the
present case, the Nadhesis are facing denial of Adult Franchise.8 Additionally, it is a well
established principle that, every woman shall have equal lineage right without gender based
discrimination.9 However, the women of Nadhesi community, at large, are being
discriminated on grounds of passing citizenship to their children,10 as they are not being
allowed to pass citizenship of decent to their children in the similar manner as the Nadhesi
males.
6. The Nadhesis are a marginalised community who have suffered gross negligence by the
dominant ruling groups of Napasia.11 The present appeal against the order of the High Court
is fit to be entertained as the Appellant aims to protect the rights of those people, or class of
people, who are not in a position to move to the court.12
7. Hence, the appellants in the present case have the required locus standi.
Janata Dal v. H.S. Chowdhary & Ors., (1992) 4 S.C.C. 305.
Id.
5, Moot Proposition.
10
Convention on the Rights of Child art. 1, Jan. 26, 1990, 1577 U.N.T.S. 3.
11
12
Youth for unity and voluntary action v. State of Maharastra, A.I.R. 1991 (Bom.) 60.

2
- Appellants-
1.2. Grounds of Appeal.

8. The Honble Supreme Court of Napasia has the power to entertain an appeal in a matter of
public importance13 involving questions of interpretation of the Constitution. The
Constitution of Napasia, 2007 contains provisions which are arbitrary & discriminatory in
nature and are violative of the basic principles envisaged in the Preamble, which aims at
ensuring economic equality, prosperity and social justice, by eliminating discrimination
based on class, caste, region, language, religion and gender, and all forms of caste-based
untouchability.14
9. However, the Constitution of Napasia contains specific provisions which affect the rights of
the people of Nadhesi community, which is basically an ethnic group in the southern plains
of Napasia.15 It is a constitutional obligation16 and responsibility of the state to enable the
socially backward classes and communities, to utilize the opportunity17, and to enjoy the
rights equally as other people do, which is one of the principles endorsed by the Preamble.18
10. The Preamble of a Constitution sets out the aspirations and the ideals of the Constitution, as
intended by its makers.19 The Preamble and the Constitution are not mutually exclusive,20
but the preamble of a Constitution is a part of the Constitution.21 In fact, not only does a
13
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, A.I.R. 2004 S.C. 1815.
14
NEPAL CONST. pmbl.
15
Supra note 13.
16
Ashoka Kumar Thakur v. Union of India (UOI) & Ors., (2008) 6 S.C.C. 1.
17
Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India & Ors., A.I.R. 1981 S.C. 298.
18
Sunil Babu Pant, Executive Director of Blue Diamond Society v. Nepal Government, Office of the Prime Minister
and Council of Ministers (2007).
19
I.C. Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643.
20
Re Berubari Union Case, A.I.R. 1960 S.C. 845.
21
Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.

3
- Appellants-
Preamble occupy the same position as other enacting words or provisions of the
Constitution,22 but it is even regarded as the basic structure of the Constitution.23
11. In addition to this, as per Article 18 (3)24 the state shall not discriminate among citizens on
grounds of origin, religion race, caste, tribe, etc. However, in the present case the Nadhesis
are being discriminated on the basis of ethnicity and origin. The citizenship provisions hence
are also in contravention of the Right to Equality as ensured by the Constitution.
12. The Constitution of Napasia also gives a fundamental right to its citizen that ensures social
justice to all. The socially backward women, indigenous people, indigenous nationalities,
minorities, persons with disabilities, marginalized communities, backward classes, gender
and sexual minorities, youths, farmers, etc. have the right to participate in the State bodies on
the basis of inclusive principle.25
13. It is the duty of the Supreme Court to ensure that these people, are given the full measure of
protection under the constitutional rights to which they are entitled,26 which shall as a result
help in making the basic human rights, meaningful to the deprived and vulnerable sections of
the community, and to assure them social, economic and political justice27.
14. Therefore, since the provisions pertaining to citizenship are violative of the principles
endorsed by the Fundamental Rights and the Preamble of the Constitution, considering the
viability of the grounds of the appeal, the same should be allowed.
22
Charan Lal Sahu v. Union of India, A.I.R. 1990 S.C. 1480.
23
State of U.P. v. Dr. Dina Nath Shukla & Anr., A.I.R. 1997 S.C. 1095.
24
NEPAL CONST. art. 18.
25
26
Ferreira v. Levinno & Ors., 1996 (1) SA 984 (CC) 241.
27
Ramsharan Autyanuprasi & Anr. v. Union of India & Ors., A.I.R. 1989 S.C. 549.

4
- Appellants-
OF
THE
BOUNDARY
OF
THE
STATES
IS
NOT
15. It is humbly submitted that the federal delimitation of the boundary of the states, in Napasia
has not been done in accordance with the principles enshrined in the Constitution. This
results in denial of fair representation to the people of the Nadhesi community.
2.1 Constitution of Napasia does not ensure fair representation to Nadhesis.
16. It is submitted that the The Constitution of Napasia fails to address the demands of
marginalised communities as the federal delineation of the new states as proposed in the
Constitution, will affect the political representation of communities such as Nadhesis and
hence, will maintain the status quo of the ruling groups.28 The marginalised groups such as
Nadhesis have the right of equal treatment of their language, political rights and
opportunities.29
17. The political objective of the State of Napasia is aimed at establishing a public welfare
system of governance, by establishing a just system in all aspects of the national life through
the rule of law, values and norms of fundamental rights and human rights, gender equality,
proportional inclusion, participation and social justice.30 It aims to promote the idea of
inclusion,31 which refers to policy aimed at including diversity and plurality of peoples in
decision- making and implementation process of governance. It also includes empowerment
28
29
Indigenous and Tribal Peoples Convention art. 4, Sep. 14, 2007, C169.
30
31
ELECTION COMMISSION NEPAL, GENDER & INCLUSION POLICY (2013).

5
- Appellants-
of the marginalised and the disenfranchised.32 Hence, it is obligatory for Napasia to designate
special measures to secure to disadvantaged group the full and equal enjoyment of human
rights and fundamental freedoms.33 However, the present delineation of boundary does not
fulfil the aim of inclusion, as it does not ensure appropriate representation to the people of
the marginalised Nadhesi community.
18. It is a settled canon of administrative jurisprudence that state action must be supported by
some valid reasons and should be upon due application of mind.34 However, in the present
case, the delineation of state, by the government of Napasia, is done in a completely
unreasonable and an arbitrary manner.
19. Even though the Constitution is promulgated by the Constituent Assembly with a clean
majority,35 this does not mean that it oversees and does not incorporate the marginalized
populations voices in the Constitution. A blinkered vision of development, complete apathy
towards those who are adversely affected by the development process and a cynical
unconcern for the enforcement of the laws, leads to a situation where the rights and benefits
promised and guaranteed under the Constitution, hardly ever reach the most marginalised
citizens.36
20. It is submitted that, though boundary delimitation or redistricting practices vary greatly
around the world, there are three universal principles to guide the delimitation process which
32
INST. OF DEMOCRACY AND ELECTORAL ASSISTANCE, INT. ELECTORAL STANDARDS GUIDELINES FOR REVIEWING
THE LEGAL FRAMEWORK OF ELECTIONS (2002).
33
GENERAL RECOMMENDATIONS, UNCERD 32.
34
Sindhu Education Society & Anr. v. The Chief Secretary, Govt. of N.C.T. of Delhi & Ors. (2010).
35
36
Mahanadi Coalfields Ltd. & Anr. v. Mathias Oram & Ors., 2010 (11) S.C.C. 269.

6
- Appellants-
are Representativeness, Equality of voting strength and Reciprocity and non-discrimination.37

In addition to this, the boundaries of the electoral units should be so drawn that constituents
have an opportunity to elect candidates which they feel truly represent them. 38 To be elected
as a member of the legislature or other provincial or local body, as well as the right to be
elected as a President, may require an age beyond the age of majority, but the right must be
guaranteed to all citizens of that age without discrimination.39
21. However, in the present case the citizen of Napasia, who have been conferred with the
naturalized citizenship, have been denied this right to contest for key-Constitutional posts.40
This clearly implies that even if representatives are chosen through fair and democratic
elections, the legislative assembly will remain unrepresentative, and, in particular, underrepresentative of ethnic minorities and the poor and less educated social classes.41 This shows
that this provision denies the people of the Nadhesi community, the political fairness, which
means even-handed treatment of political parties, racial groups, and other interest groups.42
22. It is therefore humbly submitted that the constitution of Napasia does not ensure fair
representation to the people of Nadhesi community.
37
INST. OF DEMOCRACY AND ELECTORAL ASSISTANCE, INT. ELECTORAL STANDARDS GUIDELINES FOR REVIEWING
THE LEGAL FRAMEWORK OF ELECTIONS (2002).
38
Id.
39
INST. OF DEMOCRACY AND ELECTORAL ASSISTANCE, CODE OF CONDUCT FOR THE ETHICAL & PROF.
OBSERVATION OF ELECTIONS (1997).
40
41
Karen Bird, The Political Representation of Women and Ethnic Minorities in Established Democracies 2 (Nov.
11, 2003) (unpublished manuscript) (on file with Academy of Migration Studies in Denmark).
42
Davis v. Bandemer, 106 S. Ct. 2797.

7
- Appellants-
2.2 Violative to the doctrine of Basic structure.

23. It is submitted that, the Constitution of Napasia contains an express provision which says that
no question may be raised in any court on any matter of the determination, or review, of
election constituencies made by the Election Constituency Delimitation Commission.43 It is
submitted that the delimitation of election constituencies will be done on the basis of
delineation of the states and since the delineation of the states itself is not in consonance with
principles enshrined in the Constitution, in such a situation, by keeping the Delimitation
methodology out of the ambit off judicial review the constituent assembly has violated the
basic structure doctrine, which has been adopted in the constitution of Napasia from the
Constitution of Indiana.44
24. Judicial review is an integral and essential feature of the Constitution constituting
the basic part, the jurisdiction so conferred on the High Courts and the Supreme
Court is a part of inviolable basic structure of Constitution.45 The power of judicial review is
a constituent power that cannot be abrogated by judicial process of interpretation.46
25. Arguendo, even if delimitation of boundary of states is considered a policy decision of the
government, it is well settled that if the policy or any action of the government, fails to
satisfy the test of reasonableness it would be unconstitutional.47
43
44
Madhav K. Basnet, Adoption of Foreign Values Nepal: A Study, 13 available at

https://www.jus.uio.no/english/research/news-and-events/events/conferences/2014/wcclcmdc/wccl/papers/ws5/w5-basnet.pdf.
45
L. Chandra Kumar v. Union of India & Ors., [1997] 228 I.T.R. 725 (S.C.).
46
S.R. Bommai & Ors. v. Union of India & Ors., [1994] 2 S.C.R. 644.
47
Kumari Shrilekha Vidyarthi & Ors. v. State of U.P. & Ors., 1991 (1) SCC 212.

8
- Appellants-
26. It is most categorically stated that out of all the districts in Nadhes, only few of the districts
are included in one Nadhesi state. The remaining districts are included in other different
states with majority of hill based populace. This would diminish already marginalized
Nadhesi representation in future, which is a major cause of discontent among Nadhesis.48
27. Hence, it is submitted by the Appellants that the Constitution of Napasia does not provide the
Nadhesi citizens, a fair opportunity to represent the rights and interests of their population
and hence, they are being denied the universally accepted norms of adult franchise as due to
this they wont be able to choose their representatives on certain vital constitutional posts.
48

9
- Appellants-

3.1 The provisions pertaining to citizenship are violative of Article 18.
28. It is most humbly submitted that citizenship is the right, with the help of which one can claim
other rights.49 There are certain Fundamental Rights which are only granted to citizens.50
Therefore, denial of citizenship means denial of all such rights as well.
29. In the light of this proposition, it is contested that, the citizenship provisions of Napasian
Constitution are discriminatory on certain grounds such as womens right to transfer her
citizenship to her child,51 discriminatory impact on children with Napasian mother and
foreigner father,52 discrimination in relation to naturalized citizens in holding public posts,53
and discrimination against the Nadhesis residing in Napasia.54
30. The principle of equality and equal protection of law guarantees the application of the same
laws alike and without discrimination to all persons similarly situated. 55 It also puts an
obligation on the state that it shall not discriminate citizens on grounds of origin, religion,
race, caste, tribe, sex, economic condition, language, region, ideology or on similar other
grounds.56 This clearly implies that it is not merely a negative right not to be discriminated
against, but also a positive right to be treated as an equal.57
49
R.P. KATARIA & SANJAY MISHRA, L. RELATING TO CITIZENSHIP, PASSPORT & FOREIGNERS (2nd ed. 2015).
50
NEPAL CONST. art. 17; art. 18.
51
52
53
NEPAL CONST. art. 289
54
NEPAL CONST. art. 11 cl. 5; art. 11, cl. 7.
55
M.P. JAIN, INDIAN CONST. L. 94 (6th ed. 2011).
56
NEPAL CONST. art. 18 cl. 3.
57
V.N. SHUKLA, CONST. OF INDIA 49 (12th ed. 2013).

10
- Appellants-
31. Further, it is an established rule that domicile is a pre-requisite to acquire citizenship.58 The
state of mind, or animus manendi, which is required to grant domicile, 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.59 However, in the present
case, the citizenship by descent has been granted only on the basis of the nationality of the
husband, and even if they have the required domicil, children born to a Napasian mother and
a foreigner father have been denied the citizenship.60 This essentially robs off a womans
independent status in the society.
32. The rule of law and equality before the law are designed to secure among other things justice,
both social and economical.61 In order to ensure that women get social justice, it is important
that they are treated at par with their male counterparts in the provisions that relate to transfer
of citizenship to their children.
3.2 Provisions pertaining to Citizenship are inconsistent with the International
Conventions to which Napasia is signatory.
33. It is humbly submitted that there are various international conventions prohibiting
discrimination of women.62 Further, Convention on Elimination of Discrimination Against
Women63 defines 'discrimination against women' as-
58
Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, A.I.R. 1965 S.C. 810.
59
Kedar Pandey v. Narain Bikram Sah, A.I.R 1966. S.C. 160.
60
61
M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212.
62
Covenant on Economic, Social and Cultural Rights art. 2; art. 3, May 14, 1991, 993 U.N.T.S. 3.); International
Covenant on Civil and Political Rights art. 3; art. 26, May 14, 1991, 999 U.N.T.S. 171; Convention on Elimination
of All Form of Discrimination Against Women art. 1, Feb. 5, 1991, 1249 U.N.T.S. 13.

11
- Appellants-
Any distinction, exclusion or restriction made on the basis of sex that has the
effect or purpose of impairing or nullifying womens enjoyment of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other
field. This is irrespective of their marital status, on a basis of equality of men and
women.
34. The Constitution of Napasia provides that a child can acquire citizenship by descent when
the mother is a foreigner and the father is a Napasian citizen. However, as per Article 11(7)
and proviso of Article 11(5) of The Constitution, a child whose father is a foreigner and
mother is a Napasian citizen, is entitled only to naturalized citizenship. The citizenship status
of the mother is shifted into background rendering it insignificant making the provisions
gender discriminatory against Napasian women.
35. It is submitted that there lies an inherent contradiction between The Constitution of Napasia,
2015 and treaties signed by Napasia. As per the Treaty Act 199064, if there is any
contradiction between domestic laws and any international treaty, the treaty would prevail,
rendering domestic law void for the said purpose. Thus, it is imperative for Napasia to
change its Citizenship provisions, in order to conform to its international obligations.
3.3 The Citizenship provisions are violative of Article 42.
36. It is submitted that Citizenship provisions violates Fundamental Rights as enshrined in
Chapter III of the Constitution. The Article 42 of Constitution provides for Right to
social justice for backward communities including Nadhesis by giving them right to
participate in the State bodies. The same principle draws its roots from DPSP as given in
63
Convention on Elimination of All Form of Discrimination Against Women art. 1, Feb. 5, 1991, 1249 U.N.T.S. 13.
64
Treaty Act, No. 35 of 1990, 9(1) (1990).

12
- Appellants-
Article 5165 which further aims at building an economic and social democracy through a
welfare state and the states have to give considerable importance to their essence while
making any law.66
37. In the instant case women belonging to Nadhesi community often marry across the border.67
Thus making their husband foreigners, consequently giving naturalized citizenship to their
children rendering them ineligible for posts as mentioned in Article 289 of the Constitution.
Such approach which treats a certain class of people as second class citizens cannot be
allowed to be a part of the Constitution, as it directly comes in conflict with the Fundamental
Right to equality.68
38. It is further submitted that in light of Article 11(5) of the Constitution there may be a possible
situation of statelessness for children. Article 7 of CRC,69 obligates the state to register the
child immediately after birth and bestows on the child the right, from birth, to a name and
nationality. States are obligated to implement these rights, in particular where the child
would otherwise be stateless. Article 8 of CRC obligates the states to respect the childs
right to an identity 'including nationality, name and family relations'.
39. In light of the above mentioned arguments, it is humbly submitted that the provisions
pertaining to citizenship in the Constitution of Napasia are discriminatory in nature for both
Nadhesi women and children and creates possibility of statelessness.
65
Parmananda Thakur v. Nepal Government, Prime Minister & Council of Ministers Office et al., N.K.P. (2065)
593.
66
Sunil Babu Pant v. Nepal Government, Prime Minister & Council of Ministers Office et al., N.K.P. (2065) 485.
67
68
69
Convention on the Rights of Child art. 7, Jan. 26, 1990, 1577 U.N.T.S. 3.

13
-Prayer-
- Appellants-
PRAYER
Wherefore, in the light of facts presented, issues raised, arguments advanced and authorities
cited, counsels on behalf of Appellant humbly pray before this Honble Court to kindly
declare and adjudge that:
1. To uphold and declare that federal delineation is unconstitutional;
2. To uphold and declare that the provisions regarding citizenship are unconstitutional,
being discriminatory.
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 Representatives of Nadhesis

Sd.
Counsels for the Appellants

XV

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NATIONAL MOOT COURT COMPETITION

APPEAL NO: __________/2016

MEMORANDUM FOR THE APPELLANTS

PLEADINGS AND AUTHORITIES

WHETHER THE PRESENT APPEAL IS MAINTAINABLE.

The Appellants have the Locus Standi.

WHETHER THE FEDERAL DELINEATION OF THE BOUNDARY OF THE

STATES IS NOT CONSTITUTIONALLY VALID.

Constitution of Napasia does not ensure fair representation to Nadhesis.

Violative of Doctrine of Basic Structure. -

WHETHER THE PROVISIONS REGARDING CITIZENSHIP ARE

The provisions pertaining to citizenship are violative of Article 18. -

Provisions pertaining to Citizenship are inconsistent with the

International Conventions to which Napasia is signatory.

The Citizenship provisions are violative of Article 42.

-MEMORANDUM FOR THE APPELLANTSI

All India Reporter

Cowper's King's Bench Reports

Convention on the Rights of Child

Hastings Law Cases

-MEMORANDUM FOR THE APPELLANTS II

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 APPELLANTS III

& Ors., A.I.R. 1981 S.C. 298.

Charan Lal Sahu v. Union of India, A.I.R. 1990 S.C. 1480.

Davis v. Bandemer, 106 S. Ct. 2797.

Ferreira v. Levinno & Ors., 1996 (1) SA 984 (CC) 241.

I.C. Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643.

Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, A.I.R. 3

2004 S.C. 1815.

Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed &

Ors., A.I.R. 1976 S.C. 578.

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

Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.

-MEMORANDUM FOR THE APPELLANTS IV

of Ministers Office et al., N.K.P. (2065) 593.

(3) S.C.C. 235.

Re Berubari Union Case, A.I.R. 1960 S.C. 845.

Sindhu Education Society & Anr. v. The Chief Secretary, Govt. of

N.C.T. of Delhi & Ors. (2010).

Sunil Babu Pant v. Nepal Government, Prime Minister & Council of

Ministers Office et al., N.K.P. (2065) 485.

Nepal Government, Office of the Prime Minister and Council of

Youth for unity and voluntary action v. State of Maharastra, A.I.R.

1991 (Bom.) 60.

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 APPELLANTS VI

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 APPELLANTS VII