1st NHRC - USLLS NATIONAL MOOT COURT COMPETITION, 2024

TC O7

1st NHRC – USLLS NATIONAL MOOT

COURT COMPETITION, 2024

Before
THE HONOURABLE SUPREME COURT OF AQUILA

WRIT JURISDICTION

ARTICLE 32 OF THE CONSTITUTION OF AQUILA

IN THE CASE OF

ETHAN……………………..PETITIONER
VS.
REPUBLIC OF AQUILA……………..RESPONDENT

MEMORIAL on behalf of the RESPONDENTS

MEMORIAL on behalf of THE RESPONDENTS 1

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TABLE OF CONTENTS

THE INDEX OF AUTHORITIES ___________________________________________________________ 3

THE STATEMENT OF JURISDICTION _____________________________________________________ 5
THE STATEMENT OF FACTS _____________________________________________________________ 6
THE STATEMENT OF ISSUES ____________________________________________________________ 7
THE SUMMARY OF ARGUMENTS ________________________________________________________ 8
ARGUMENTS ADVANCED ______________________________________________________________ 10
ISSUE 1 - WHETHER THE REPUBLIC OF AQUILA IS BOUND BY THE PRINCIPLE OF NON-
REFOULMENT AND VARIOUS INTERNATIONAL CONVENTIONS ON HUMAN RIGHTS? ERROR!
BOOKMARK NOT DEFINED.
ISSUE 2 - WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 21 ARE AVAILABLE TO
NON-CITIZENS? _______________________________________________ ERROR! BOOKMARK NOT DEFINED.
ISSUE 3 - WHETHER THE NATIONAL SECURITY OF REPUBLIC OF AQUILA WOULD BE
HINDERED BY GIVING REFUGE TO VOLAN REFUGEES IN ITS TERRITORY? ERROR! BOOKMARK
NOT DEFINED.
ISSUE 4 - WHETHER FOREIGNERS ACT,1946 IS JUSTICIABLE IN TERMS FOR DERIVING
REFUGEE STATUS IN ROA ? ____________________________________ ERROR! BOOKMARK NOT DEFINED.
PRAYER _______________________________________________________________________________ 33

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THE INDEX OF AUTHORITIES

JOURNALS

1. De Sarkar, Dipankar. 2015. Why Won’t India Sign Refugee Treaty? Livemint.
September 11. Available
online: [Link]
[Link] ____________________________________ 9

2. Janmyr, Maja. 2021. The 1951 Refugee Convention and Non-Signatory States:
Charting a Research Agenda. Available
online: [Link] (access
ed on 10 November 2021). ______________________________________________ 7

3. Omar Chaudhary, “Turning Back: An Assessment of Non-Refoulement under Indian

Law”, 39 EPW 3257-3264 (2004), available at: [Link]
(last visited on July 30, 2016). __________________________________________ 13

4. Robert L. Newmark, “Non-Refoulement run afoul: The Questionable Legality of

Extraterritorial Repatriation Programs”, 71 Wash U.L.Q. 833 (1993). ____________ 6

5. Samaddar, Ranabir, ed. 2003. Refugees and the State: Practices of Asylum and Care
in India, 1947–2000. New Delhi: SAGE, p. 21. ______________________________ 7

ARTICLES

6. James C. Hathaway, The Law of Refugee Status 24-27 (Butterworths, Toronto, 1991).
____________________________________________________________________ 6

7. Nimrat Kaur, Protection of Refugees in India: A critical Analysis, SSRN, (25

December 2023, 10:00 AM),
[Link] _________________ 24

8. Pritam Ghosh, The " Illegal Migrant " and " Refugee " Status Dilemma: A critical
analysis with special reference to the Rohingya Muslims in India, ACADEMIA (Oct.
1, 2019), [Link] . _______________ 20

9. T. Ananthachari, “Refugees in India: Legal Framework, Law Enforcement and

Security”, 7 ISILYBIHRL (2001), available at:
[Link] (last visited on
December 28, 2016). __________________________________________________ 12

BOOKS

10. 1 GS Goodwin-Gill, The Refugee in International Law 117 (Clarendon Press, Oxford,
2nd edn., 1996). ______________________________________________________ 6

11. Gil Loescher, Blaming the Victim: Refugees and global security, 58, JSTOR, 46, 47,
(1999), [Link] ______________ 17

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12. Omar Chaudhary, Turning Back: An Assessment of Non-Refoulement under Indian

Law, 39 ECONOMIC AND POLITICAL WEEKLY 3257, 3257-64 (2004)”. _____ 18

13. Rajeev Dhawan, “On model law for refugees: A response to the National Human
Rights Commission”, (26 December, 2023, 1:00 PM), ________________________ 25

14. Rathin Bandyopadhyay, Human Rights of Noncitizens: Law and Reality, DEEP AND
DEEP PUBLICATIONS, 31-32 (2007)”. __________________________________ 17

CASE LAWS

15. Afghan Human Freedom vs. State of Punjab WP (CRL) No 125 and 126 of 1986. _ 21

16. Cuong and Others v. The Director of Immigration and Others (Hong Kong)Privy
CouncilNov 21, 1996 1996 UKPC 43 _____________________________________ 8

17. Dr. Malvika Karlekar v. Union of India Criminal Writ Petition No. 583 of 1992 dated
25.09.1992. _________________________________________________________ 13

18. Gramophone Company of India Limited v. Birendra Pandey AIR 1984 SC 677. ___ 11

19. Gurunathan and others v, Government of India (1992) 2 SCC 1 (India). _________ 20

20. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ______________________________ 13

21. Korablina v. Immigration and Naturalization Services and Refugee Appeal No.
71427/9 ____________________________________________________________ 13

22. Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 Cr.L.J 919 ________________ 8

23. Laila Khatoon vs. State of Telangana WP/31190/2022 ________________________ 8

24. Malavika Karlekar v. Union of India, 1992 SCC Online SC 249. _______________ 21

25. N.D. Pancholi v. State of Punjab and Others, Writ Petition (CRL.) No.243 of 1988
(for Prel. Hearing) ____________________________________________________ 21

26. NHRC v. State of Arunachal Pradesh 1996 SCC (1) 742. _____________________ 15

27. Nicaragua v. United States of America 1986 I.C.J. 14 at para186. ______________ 12

28. Nilabati Behera v. State of Orissa16 and Vishakha v. State of Rajasthan AIR 1997 SC
3011. ______________________________________________________________ 11

29. North Sea Continental Shelf Case I.C.J. Reports 1969 at 3, para 63. _____________ 12

30. Parveen Akhtar v. The State of Telangana WP/31199/2022 _____________________ 8

31. People’s Union for Civil Liberties v. Union of India 1991 (1) SCC 301.__________ 10

32. R v. Secretary of State for the Home Department [1962] 3 All ER 373 ___________ 14

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33. State of Arunachal Pradesh v. Khudiram Chakma, 1993 SCR (3) 401. ___________ 21

34. Suo Moto vs. State of Rajasthan 2005 RLW RAJ 2 1385 ______________________ 8

35. Syed Ata Mohammadi v. Union of India A. D. 1458 of 1994 OR A. D. crlno 49 50 of

1994_______________________________________________________________ 16

36. Syed Ata Mohammadi vs. State, Criminal, (1994), W.P. no.7504/1994, Bombay High
Cour_______________________________________________________________ 21

37. Zonthansangpuii v. State of Manipur (Civil Rule No. 1981 of 1989 and No. 515 of
1990) ______________________________________________________________ 12

THE STATEMENT OF JURISDICTION

THE PETITIONER HAS FILED THIS WRIT PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA FOR THE VIOLATION OF FUNDAMENTAL RIGHTS
ENUMERATED IN PART III OF THE CONSTITUTION.

ARTICLE 32 OF THE CONSTITUTION OF REPUBLIC OF AQUILA.1

32. Remedies for enforcement of rights conferred by this Part

1. The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.
3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and
(2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court
under clause (2).

1
THE CONSTITION OF INDIA, 1950

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4. The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

THE STATEMENT OF FACTS

The Federal Republic of Orion (FRO) has a population of over 60,000,000 inhabitants. The
population of FRO is mainly divided among three composed of 3 ethnic groups: Caelum,
Lupus, and Octans. Its capital and largest city is Tucuna. The Caelum people form about 70%
of the total population and mostly live in the North, while the Lupus people comprise of roughly
20% and reside in the West. The Octans are a small population 7% and are concentrated in the
Western region of FRO while the remaining population belongs to other minor ethnic groups
including the Volans, who reside in the Southern region of FRO. The Volans, a minor ethnic
group, are denied citizenship under the FRO nationality law and there are also restrictions on
their freedom of movement, access to state education and other rights unlike those available to
other ethnic groups of FRO.
The FRO government considers the Volans as migrants from neighbouring countries. Despite
living in FRO for many generations, the Volans are not recognised as an official ethnic group
and have been denied citizenship since 1990, making them one of the world’s largest stateless
population. The community has suffered decades of violence, discrimination and persecution
in FRO. As a stateless population, the Volans families are denied basic rights and protection
and are extremely vulnerable to exploitation and abuse. Various armed insurrections by the
Volans have taken place since the 1950s. Moreover, the population has faced several military
crackdowns in 1970, 1989-1992, 2015, and more particularly in 2018, when most of the Volans
population of FRO was forced to leave the country.
This was their largest exodus after a massive wave of violence broke out in FRO’s city of
Tucuna, forcing around 800,000 people to seek refuge in other countries. Even the International
Court has taken note of the genocide of the Volans in FRO and that the lives of these refugees
are in serious danger, if they are deported. After the exodus, a part of the displaced Volans
entered the neighbouring country, Republic of Aquila (ROA) through various routes. They
avoided staying near FRO’s borders and the Volans spread over a large area across various
states of ROA. As per records of ROA, around 40,000 displaced Volans are living illegally in
ROA including about 10,000 Volans residing in and around the northern state of Dorado, ROA.

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In a major crackdown by the government of ROA, a lot of Volans refugees have been detained
in Holding Centres or jailed and face deportation back to FRO. Moreover, the government of
ROA issued letters to the Chief Secretary of all the state governments advising them to sensitize
all the law enforcement and intelligence agencies to take appropriate steps and initiate
deportation process. In 2019, Ethan, a member of the Volans community residing in a Holding
Centre for Volan refugees from Orion, filed a petition before the Court of ROA praying for the
issue of an appropriate writ directing the government of ROA to provide basic human rights
and amenities to the members of the Volans community, who have taken refuge in ROA. The
petitioner claimed to have registered themselves as refugees with the United Nations High
Commission for refugees, and sought release of the detained Volans refugees and direction to
the ROA not to deport the Volans refugees who have been detained in the jails of Dorado, ROA

THE STATEMENT OF ISSUES

ISSUE 1 - WHETHER THE REPUBLIC OF AQUILA IS BOUND BY THE

PRINCIPLE OF NON-REFOULMENT AND VARIOUS INTERNATIONAL
CONVENTIONS ON HUMAN RIGHTS?

ISSUE 2 - WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 21 ARE

AVAILABLE TO NON-CITIZENS?

ISSUE 3 - WHETHER THE NATIONAL SECURITY OF REPUBLIC OF AQUILA

WOULD BE HINDERED BY GIVING REFUGE TO VOLAN REFUGEES IN ITS
TERRITORY?

ISSUE 4 - WHETHER FOREIGNERS ACT,1946 IS JUSTICIABLE IN TERMS FOR

DERIVING REFUGEE STATUS IN ROA ?

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THE SUMMARY OF ARGUMENTS

ISSUE 1 - WHETHER THE REPUBLIC OF AQUILA IS BOUND BY THE

PRINCIPLE OF NON-REFOULMENT AND VARIOUS INTERNATIONAL
CONVENTIONS ON HUMAN RIGHTS?
The respondent's arguments asserting that the Republic of Aquila (ROA) is not bound by the
non-refoulement principle can be summarized as follows: Absence of Specific Legislation: The
respondent contends that the legal framework of ROA lacks explicit acknowledgment or
incorporation of the non-refoulement principle. Unlike certain jurisdictions that have expressly
included this principle in their domestic laws, ROA's legal system does not mandate adherence
to non-refoulement, asserting that the absence of specific legislation relieves ROA from the
obligation to comply with such a principle. Non-State Actors' Obligations: Highlighting the
absence of a clear legal framework governing refugees in ROA, the respondent argues that non-
state actors within the jurisdiction are not explicitly bound by protections akin to non-
refoulement. Without specific legal provisions, private individuals may not be subject to the
protections granted by international refugee law, and this absence of explicit obligations
underlines ROA's position.

ISSUE 2 - WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 21 ARE

AVAILABLE TO NON-CITIZENS?
The respondent's arguments asserting that Article 19(1)(e) is available to citizens only can be
summarized as follows: Interpretation of Article 19(1)(e): The respondent refers to the case
of Mohammad Salimullah vs. Union of India, where the Supreme Court observed that the right
not to be deported is ancillary to the fundamental right to reside or settle in any part of India
guaranteed under Article 19(1)(e) of the Constitution. The fundamental right under Article
19(1)(e) is stated to be available only to Indian citizens. Limitation of Rights to Citizens:
Emphasizing the language and intent of Article 19(1)(e), the respondent argues that the specific
wording of the provision and the fundamental rights it guarantees are expressly linked to Indian
citizenship. As such, the right to reside or settle in any part of India is inherently restricted to
citizens.

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ISSUE 3 - WHETHER THE NATIONAL SECURITY OF REPUBLIC OF AQUILA

WOULD BE HINDERED BY GIVING REFUGE TO VOLAN REFUGEES IN ITS
TERRITORY?
The counsel humbly submits before the honourable court that the Volan refugee would be a
threat for the national security of Republic of Aquila and the government stands clear that no
refugee status would be provided to the volan refugee as it would be against the national
security and the domestic laws did not permit for the same. Firstly, The Aquila Government
has absolute powers to expel foreigners without constitutional fetters. Under the section 3 of
Foreigner’s Act 1946 centre has the power to prevent illegal migrants including the use of force.
Secondly, Aquila had porous land borders which could lead to larger refugee influx and become
a security threat. Many incidents had happened due to the poriferous boundaries and various
research and reports proves that such refugee influx are one of the reasons behind that. Thirdly,
National security is an exemption provided under international covenants and declarations that
is ratified by Aquila.

ISSUE 4 - WHETHER FOREIGNERS ACT,1946 IS JUSTICIABLE IN TERMS FOR

DERIVING REFUGEE STATUS IN ROA ?
The counsel humbly submits before the honourable court that the Foreigners act,1946 is
justiciable in terms of deriving refugee status in India, as it is the appropriate law which deals
with the refugees and it provides the power to central government to deport any person who is
a non- citizen which is defined under the section 2(a) of the Foreigners Act,1946 and the right
to reside in aquila which is a fundamental right under article 19(1)(e ) is not absolute, as the
government has the power to deport any foreigner under the act and the power of government
is justified under the act. It proves to act against terrorism as well as saviour of National
security. Municipal law which is the Foreigners Act, 1946 is the appropriate law in dealing with
the refugee crisis in aquila and where there arose a conflict between international law and
municipal law then the national interest should be prioritised. As every time the international
law cannot be respected because the national interest comes first.

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ARGUMENTS ADVANCED

ISSUE 1 - WHETHER THE REPUBLIC OF AQUILA IS BOUND BY THE

PRINCIPLE OF NON-REFOULMENT AND VARIOUS INTERNATIONAL
CONVENTIONS ON HUMAN RIGHTS?

1) In defense of the Respondents, it is asserted that the Republic of Aquila (ROA) is not bound
by the principle of non-refoulement as it is not a signatory to the 1951 Convention Relating
to the Status of Refugees.2 The principle of non-refoulement, deeply rooted in the
convention, establishes specific obligations for signatory states, and ROA's non-
participation in this international treaty absolves it from these particular commitments.
2) The Respondents' written submissions are structured with clarity to address the contentions
raised by the Petitioners. This structured approach in the Respondents' pre-arguments sets
the stage for a comprehensive response to the Petitioners' claims, emphasizing legal
nuances and sovereign prerogatives in the formulation of immigration and asylum policies
by the ROA.
a) The Republic of Aquila is not bound by any convention related to refugees.
b) The case comes under the exception of Non-Refoulment.

[A]
REPUBLIC OF AQUILA IS NOT BOUND BY ANY CONVENTION RELATED TO
REFUGEES
3) The Respondents submit a nuanced legal argument grounded in the specific legal
framework of the Republic of Aquila (ROA). First and foremost, they emphasize the fact
that ROA is not a signatory to the United Nations Convention Relating to the Status of
Refugees (1951). This absence of formal adherence to the Refugee Convention implies that
the legal obligations associated with the Convention, such as the principle of non-
refoulement, are not automatically applicable to ROA.

2
UNHCR, [Link] (last visited 24
December, 2023).

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i. ROA IS NOT SIGNATORY OF REFUGEE CONVENTION

4) The Respondents' legal stance is firmly anchored in the distinctive legal landscape of the
Republic of Aquila (ROA), emphasizing its non-signatory status to the United Nations
Convention Relating to the Status of Refugees (1951).3 This deliberate decision by ROA
not to accede to the Refugee Convention serves as the cornerstone of the Respondents'
argument.
5) Respondent asserts that the absence of formal ratification entails the non-applicability of
the Convention's obligations, including the principle of non-refoulement, to ROA. By
underscoring ROA's deliberate choice to refrain from becoming a party to the Refugee
Convention, the Respondents contend that the legal obligations encapsulated within the
Convention are not automatically transposed onto the domestic legal fabric of ROA.
6) Moreover, the Respondents contend that ROA, being a sovereign state, retains discretion
over its immigration policies and the determination of refugee status. They argue that the
Refugee Convention, as an international treaty, only binds its signatories. Therefore, ROA,
not being a signatory, retains the autonomy to craft and implement its policies on refugee
recognition in a manner consistent with its national interests.
7) In addressing the Universal Declaration of Human Rights (UDHR), the Respondents
acknowledge its moral standing but assert that, in legal terms, the UDHR does not impose
binding obligations on ROA. Without specific provisions within ROA's domestic legal
framework that incorporate the UDHR, the Respondents contend that it remains a
persuasive document rather than a source of enforceable legal obligations..

ii. THERE IS AN ABSENCE OF DOMESTIC LEGISLATION

8) The Respondents argue that within the legal framework of the Republic of Aquila (ROA),
there exists no specific acknowledgment of the principle of non-refoulement. Unlike certain
jurisdictions that may have expressly incorporated this principle into their domestic laws,
ROA contends that its legal system does not mandate adherence to non-refoulement in the
absence of a dedicated and uniform legal provision. This emphasizes that ROA, lacking

3
The 1951 Convention relating to the Status of Refugees, (22 April, 1954) [hereinafter 1951 Convention],
[Link] (last visited on Jan 14, 2024).

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explicit legislation on non-refoulement, is not inherently obliged to adhere to such a

principle.
9) The absolute authority conferred upon the government to expel any individual deemed to
have entered the country illegally is highlighted, posing potential challenges for refugees
lacking formal status determinations for their identity. The Respondents posit that while
status determination is not a prerequisite for non-refoulement, its practical application in
the absence of a comprehensive legal framework may diverge from customary international
norms.4
10) In conclusion, the Respondents contend that ROA's current legal landscape lacks explicit
provisions concerning the status and protection of refugees. Consequently, the absence of
dedicated legislation positions the Republic of Aquila under no specific obligation to grant
refugee status to the Volan community from the Federal Republic of Orion.

iii. CASE LAWS

11) In the case of Louis De Raeds v. Union of India5, the Supreme Court of India dealt with
the question of the applicability of the principle of non-refoulement in the absence of
specific domestic legislation. The court held that while non-refoulement has been
recognized under Article 21 of the Indian Constitution, its application is largely dependent
on judicial innovations rather than a dedicated legal framework. This precedent can be cited
to argue that ROA, like India, is not bound by the principle of non-refoulement due to the
absence of specific legislative provisions.
12) The case of NHRC vs. Arunachal Pradesh6 addresses the challenges faced by refugees,
particularly the Chakma refugees, in the absence of a uniform legal framework. It highlights
the ambiguity and gaps in municipal laws regarding refugees and underscores the
discretionary powers conferred upon the government. By drawing parallels with this case,
it can be argued that ROA, lacking specific legislation for refugees, is not inherently bound
by international principles such as non-refoulement.
13) The case of Hans Muller of Nurenburg v Superintendent7, Presidency Jail, Calcutta,
established the principle that municipal laws should be construed in harmony with

4
UNHCR INDIA FACT SHEET, [Link] org/sites/default/files/India‘ 20fact‘ 20sheet‘ 20April‘
[Link]. (Last Visited 23 December, 2023).
5
Louis De Raeds v. Union of India, 1991AIR 1886.
6
NHRC v. State of Arunachal Pradesh, 1996 AIR 1234
7
Hans Muller of Nurenburg v. Superintendent. Presidency Jail. (1955) 1 SCR 1284

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international obligations. However, it also recognized that in the absence of clear

legislation, the domestic courts may not enforce international principles as binding rules.
This case can be cited to support the argument that ROA, without explicit legislation on
refugees, is not obligated by the Refugee Convention, and the persuasive value of UDHR
does not impose a mandatory duty.
14) In State v. Ranjeet Singh8, the court dealt with issues related to the expulsion of individuals
lacking legal status. This case can be leveraged to argue that ROA, without specific laws
on refugees, possesses the authority to expel individuals without refugee status. It
reinforces the idea that the absence of dedicated legislation places ROA under no binding
obligation to grant refugee status to the Volan communit
i. CONCLUSION

15) In conclusion, the Respondents assert that the Republic of Aquila (ROA) is not bound by
the principle of non-refoulement due to the absence of specific domestic legislation
explicitly recognizing this principle. Unlike certain jurisdictions that have incorporated
non-refoulement into their legal frameworks, ROA contends that its legal system does not
mandate adherence to this principle in the absence of dedicated and uniform legal
provisions.
16) The Respondents further emphasize that the lack of a clear legal framework governing
refugees in ROA means that non-state actors within the jurisdiction are not explicitly bound
by protections akin to non-refoulement. This underscores the legal landscape in ROA,
suggesting that private individuals may not be subject to the protections granted by
international refugee law in the absence of specific legal provisions.9
17) Additionally, the Respondents draw attention to the municipal laws of ROA, comparing
them with other legal systems. They argue that the local legislation, similar to the
Foreigners Act in certain jurisdictions, does not distinctly differentiate between foreigners
and refugees. The absolute authority granted to the government to expel individuals deemed
to have entered the country illegally is highlighted, presenting potential challenges for
refugees without formal status determinations.
18) In consideration of these arguments, the Respondents conclude that ROA's existing legal
framework lacks explicit provisions for the status and protection of refugees. Consequently,

8
State v. Ranjit Singh, 1984 (6) DRJ 267.
9
RAJYA SABHA UNSTARRED %UESTION NO. 350 TO BE ANSWERED ON THE 05TH FEBRUARY, 2020,
[Link]

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the absence of dedicated legislation positions ROA under no specific obligation to grant
refugee status to the Volan community from the Federal Republic of Orion. This stance
aligns with legal precedents, including Louis De Raeds v. Union of India, NHRC vs.
Arunachal Pradesh, Hans Muller of Nurenburg v Superintendent, Presidency Jail, Calcutta
(1955), and State v. Ranjeet Singh, which collectively reinforce the Respondents' position
on ROA's non-binding obligation.10

[B]
THIS CASE COMES UNDER THE EXCEPTIONS OF THE PRINCIPLE OF NON-
REFOULMENT.
19) The Respondents contend that while the principle of non-refoulement is acknowledged as
part of customary international law, it is crucial to recognize that this principle, like many
others, is not absolute and may have exceptions. The customary nature of the principle
implies that it has evolved based on consistent state practice and opinio juris, but it also
allows for certain exceptions, particularly in circumstances where national security and
public order are at stake.
20) \National security and public order are paramount considerations for any sovereign state.
In exceptional situations where the entry or stay of certain individuals, including refugees,
poses a genuine and severe threat to the host country's national security or public order, the
state may have the prerogative to deviate from the principle of non-refoulement. The
Respondents argue that these exceptions are inherent in customary international law and
are recognized as necessary to balance humanitarian concerns with the sovereign rights of
states.
21) By presenting the exceptions to the principle of non-refoulement, particularly in cases
involving national security and public order, the Respondents aim to establish that ROA,
as a sovereign state, has the right to invoke these exceptions when the circumstances
warrant. This argument is intended to underline the pragmatic approach needed in
addressing complex issues related to refugees while respecting the state's obligations and
responsibilities in maintaining security and public order.

i. EXCEPTION OF PUBLIC ORDER

10
. Executive Committee of the High Commissioner’s Programme, 1958, available at: https:/
/[Link]/[Link]

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22) The Respondents assert that the exception to the principle of non-refoulement based on
public order is a legitimate and recognized facet of customary international law. Public
order is an essential component of state sovereignty, ensuring the well-being, safety, and
stability of the host nation. In cases where the presence of certain individuals, such as
refugees, poses a substantial threat to public order, states may lawfully invoke this
exception to deviate from the principle of non-refoulement.11
23) In the context of the Volan community seeking refuge in the Republic of Aquila (ROA), the
Respondents argue that the exceptional circumstances surrounding the Volans, as
highlighted in the case, necessitate a careful evaluation of the potential impact on public
24) order. The various armed insurrections, military crackdowns, and the exodus of a
significant portion of the Volan population from the Federal Republic of Orion (FRO) to
ROA underscore the complex and potentially destabilizing nature of their presence.
25) The Respondents may further argue that the military crackdowns and violence witnessed
in FRO have created a situation where the Volan community's refuge in ROA could be
perceived as a potential threat to public order. The large-scale influx of displaced Volans,
coupled with their historical involvement in armed insurrections, could understandably be
a cause for concern regarding the maintenance of public order in ROA.
26) By aligning the public order exception with the specific circumstances of the Volan case,
the Respondents aim to establish that invoking this exception is a justifiable and necessary
measure to safeguard the host nation's stability and security. This argument seeks to
emphasize that the principles of non-refoulement must be balanced with the imperative of
maintaining public order, especially when faced with situations that may have broader
implications for the host state's internal security and stability.

ii. EXCEPTION OF NATIONAL SECURITY

27) The Respondents put forth a compelling argument based on the exception to the principle
of non-refoulement grounded in considerations of national security. Within the realm of

11
Atul Alexander, Supreme Court of India and Non-Refoulment: A tale of Self-Imposed Limitations, LIVE LAW,
15 August 2021 12:04 PM, [Link]
united-nations-high-commission-on-refugees-unhcr-
179601#:~:text=Although%20the%20principle%20of%20non,law%20and%20jus%20cogens%20obligation.

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customary international law, it is widely recognized that states reserve the right to prioritize
and safeguard their national security interests, even in the context of hosting refugees.
28) In the specific case of the Volan community seeking refuge in the Republic of Aquila
(ROA), the Respondents contend that the exceptional circumstances surrounding the
Volans, as outlined in the case, necessitate a thorough evaluation of potential threats to
national security. The history of armed insurrections, military crackdowns, and the
significant exodus of the Volan population from the Federal Republic of Orion (FRO) to
ROA underscores the complexity and potential security risks associated with their presence.
29) The Respondents may argue that the volatility of the situation in FRO, marked by armed
conflicts and large-scale displacement, has created conditions where the refuge of the Volan
community in ROA could be perceived as a potential threat to national security. Given the
historical context of armed insurrections involving the Volans, the Respondents may
contend that the host nation, ROA, has a legitimate and compelling interest in prioritizing
its national security.
30) By aligning the argument with the national security exception, the Respondents aim to
establish that, in the interest of protecting the well-being and security of the nation, there
exists a justifiable and necessary basis for deviating from the strict application of the
principle of non-refoulement. This argument seeks to underscore the imperative of
balancing refugee protection principles with the broader considerations of national security,
especially when confronted with circumstances that may have far-reaching implications for
the host state's security and stability.

iii. CASE LAWS

31) In light of the precedents set by relevant case laws such as Maiwand’s Trust of Afghan
Human Freedom Petitioners v. State of Punjab and others12 and Ananda Bhavani (a)
Geethanando, Ananda Ashram, Pondicherry v. Union of India13, the Respondents can draw
persuasive arguments to support their position in the current case involving the Volan
community seeking refuge in the Republic of Aquila (ROA).

12
Maiwand’s Trust of Afghan Human Freedom Petitioners v. State of Punjab and others Writ Petition (Crl.)
No.125 and 126 of 1986.
13
Pondicherry v. Union of India, (1996) 3 SCC 212.

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32) The case of Maiwand’s Trust of Afghan Human Freedom Petitioners v. State of Punjab14
and others serves as a pertinent precedent to emphasize that the apex court, in the interest
of national security, stayed the expulsion of refugees from India when there were no
reasonable apprehensions against the security of the country. By aligning with this case, the
Respondents can argue that the principle of non-refoulement is subject to considerations of
national security, and decisions to stay expulsion are contingent upon evaluating potential
threats.
33) Moreover, the Respondents can draw attention to the associated aspect of non-refoulement
discussed in the case, emphasizing the importance of avoiding violations of the principle
of natural justice. They may argue that the Indian government, in aligning with international
norms, has consistently prioritized the best interests of refugees, ensuring that deportation
decisions are not made on subjective criteria. This aligns with the notion that the mere
influx of refugees does not grant authorities the right to deport them if they genuinely fear
persecution in their country of origin.
34) Building upon the case of Ananda Bhavani (a) Geethanando, Ananda Ashram, Pondicherry
v. Union of India15, the Respondents can contend that the courts recognize the validity of
deportation orders without a hearing when the presence of certain individuals poses a
credible threat to national security. This precedent provides a basis for arguing that, in
specific instances where there is a real likelihood of a threat to national security and public
order, deportation orders can be justified without violating the principles of natural justice.

iv. CONCLUSION

35) In conclusion, the Respondents present a compelling argument based on well-established

legal principles and precedents. The exceptions to the principle of non-refoulement,
particularly those related to national security and public order, find resonance in key
judgments such as Maiwand’s Trust of Afghan Human Freedom Petitioners v. State of
Punjab and others and Ananda Bhavani (a) Geethanando, Ananda Ashram, Pondicherry v.
Union of India.
36) The case of Maiwand’s Trust underscores the significance of evaluating potential threats to
national security before implementing expulsion orders. This precedent establishes that

14
Supra Note 11
15
Supra Note 12

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decisions to stay expulsion are not only reasonable but imperative when there are no
substantial apprehensions against the security of the state.
37) Furthermore, the associated aspect of non-refoulement, as discussed in the same case,
reinforces the importance of avoiding violations of the principle of natural justice. The
Respondents argue that the government's consistent prioritization of the best interests of
refugees aligns with international norms, ensuring that deportation decisions are not
arbitrary and are made in accordance with due process.
38) The case of Ananda Bhavani (a) Geethanando, Ananda Ashram, Pondicherry v. Union of
India further fortifies the Respondents' position by recognizing the validity of deportation
orders without a hearing in cases where individuals' presence poses a credible threat to
national security. This precedent substantiates the argument that exceptions to non-
refoulement are justified when there is a real likelihood of a threat to national security and
public order.
39) In totality, these arguments and case laws collectively assert that the principle of non-
refoulement is not absolute and must be carefully balanced with considerations of national
security and public order. The Respondents contend that the exceptions carved out by these
legal principles provide a legitimate basis for justifying deportation orders, ensuring the
overall safety and stability of the Republic of Aquila.

ISSUE 2 - WHETHER THE FUNDAMENTAL RIGHT OF ARTICLE 19(1)(e) IS

ONLY AVAILABLE TO THE CITIZENS OF REPUBLIC OF AQUILA?

40) The Respondents assert that the right to reside in a country, as encapsulated in Article
19(1)(e) of the Constitution of the Republic of Aquila (ROA)16, is a fundamental right
expressly granted to citizens. This constitutional provision explicitly confers certain rights
on citizens, and the right to reside is inherently tied to the legal status of citizenship. Non-
citizens, including the Volan community seeking refuge in ROA, do not automatically fall
within the ambit of Article 19(1)(e) as this right is explicitly delineated for citizens.
41) The legal framework, as articulated in the ROA Constitution, places citizenship at the core
of the right to reside. This perspective aligns with international legal norms, wherein the

16
INDIA CONST. art. 19, § 1, cl. E.

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right to reside in a country is typically linked to citizenship status. The Respondents argue
that extending Article 19(1)(e) to non-citizens, particularly refugees, would go against the
constitutional intent and established legal principles.
42) The Respondents' written submissions are structured with clarity to address the contentions
raised by the Petitioners. This structured approach in the Respondents' pre-arguments sets
the stage for a comprehensive response to the Petitioners' claims, emphasizing legal
nuances and sovereign prerogatives in the formulation of immigration and asylum policies
by the ROA.
a) RIGHT IS AVAILABLE TO CITIZENS ONLY

[A]
THIS RIGHT OF ARTICLE 19(1)(e) IS AVAILABLE TO CITIZENS ONLY

43) The Respondents contend that the right to reside in a country, enshrined in Article 19(1)(e)
of the Constitution of the Republic of Aquila (ROA), is unequivocally a prerogative granted
exclusively to citizens. This constitutional provision, while recognizing certain
fundamental rights, particularly emphasizes the scope of these rights for citizens of ROA.
The language and intent of Article 19(1)(e) clearly indicate that the right to reside is
inherently tied to the status of citizenship, making it applicable only to citizens.
44) The constitutional framework of ROA establishes a clear distinction between the rights
afforded to citizens and non-citizens. Article 19(1)(e), within this framework, is designed
to protect the interests and privileges of citizens by ensuring their right to reside in the
country of their citizenship. This exclusivity aligns with international legal norms where
the right to reside is typically linked to the legal status of citizenship.
45) Moreover, the denial of citizenship to the Volan community under the FRO nationality law
reinforces the constitutional delineation of rights based on citizenship status. As non-
citizens, the Volans cannot automatically claim the right to reside under Article 19(1)(e).
The constitutional architecture of ROA, by limiting this right to citizens, emphasizes the
importance of protecting the unique privileges and responsibilities associated with
citizenship.
46) In conclusion, the Respondents assert that the right to reside under Article 19(1)(e) is
explicitly reserved for citizens, and extending this right to non-citizens would contravene
the constitutional design and principles governing the legal framework of ROA.

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i. CASE LAW

47) In light of the observations made by the Supreme Court in the case of Mohammad
Salimullah Vs. Union of India,17 it is imperative to underscore the constitutional
interpretation provided by the highest judicial authority in the Republic of Aquila (ROA).
The court's emphasis on the right not to be deported as ancillary to the fundamental right
to reside or settle under Article 19(1)(e) of the Constitution establishes a nuanced
understanding of constitutional rights.
48) The Respondents submit that the delineation made by the Supreme Court reinforces the
exclusivity of the right under Article 19(1)(e) to Indian citizens. The court's
acknowledgment that rights under Articles 1418 and 2119 are available to all persons,
regardless of citizenship, reflects a broader commitment to fundamental rights. However,
the specific right not to be deported is intricately tied to the right to reside or settle, thereby
aligning with the constitutional framework that reserves this particular privilege for
citizens.
49) Furthermore, the Respondents contend that the Supreme Court's interpretation provides a
clear constitutional basis for the limitation of certain rights to citizens, recognizing the
unique character and responsibilities associated with citizenship. As the Volan community
falls outside the ambit of citizenship in ROA, the rights enshrined in Article 19(1)(e),
including the right not to be deported, are not automatically extended to them.

ii. CONCLUSION

50) Therefore, from the Respondents' standpoint, the constitutional interpretation in this case
provides a legal basis to argue that the right not to be deported is not universal but is
contingent upon the right to reside or settle as enshrined in Article 19(1)(e). As this
fundamental right is exclusive to Indian citizens, the Respondents can contend that non-
citizens, including the Volan community seeking refuge in the Republic of Aquila (ROA),
do not automatically inherit this right and its associated protections.

17
Mohammad Salimullah Vs. Union of India, AIR 2021 SC 1789
18
INDIA CONST. art. 14
19
INDIA CONST. art. 21.

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51) In conclusion, the Respondents can assert that the constitutional framework of ROA,
similar to the Indian context, limits the application of the right not to be deported to citizens,
reinforcing the notion that the Volan community, as non-citizens, does not inherently
possess this specific right under Article 19(1)(e).

ISSUE 3 - WHETHER THE NATIONAL SECURITY OF REPUBLIC OF AQUILA

WOULD BE HINDERED BY GIVING REFUGE TO VOLAN REFUGEES IN ITS
TERRITORY?

The counsel humbly submits before the honourable court that the Volan refugee would be a
threat for the national security of Republic of Aquila and the government stands clear that no
refugee status would be provided to the volan refugee as it would be against the national
security and the domestic laws did not permit for the same. The counsel will support this
contention in a threefold argument. Firstly, The Aquila Government has absolute powers to
expel foreigners without constitutional fetters. Secondly, Aquila had porous land borders which
could lead to larger refugee influx and become a security threat. Thirdly, National security is
an exemption provided under international covenants and declarations that is ratified by Aquila.
3.1 The Aquila Government has absolute powers to expel foreigners without constitutional
fetters.
The counsel humbly submits before the honourable court that the Aquila has absolute power to
expel foreigners from its Land. The Volan people in this case are tend to be foreigners which
were dealt under the foreigners act, which declares them foreigners. There is no human right
concept while dealing with the state’s national security.
Therefore, in the present case government of aquila is exercising its power on behalf of its
citizens to protects its territory from foreign threats. The same contention has been held by the
honourable supreme court of India in the case of Hans Muller of Nurenburg v Superintendent,
Presidency Jail, Calcutta (1955) 20 the case revolves around Hans Muller, a German national
who sought refuge in India after facing persecution in Germany during World War II.
Muller, a former internee in British India, was declared as prohibited immigrant by the Indian
authorities, leading to his detention. He challenged this action, arguing that it violated his

20
Hans Muller of Nurenburg v. Superintendent, Presidency Jail, 1955 AIR 367 1955 SCR (1)1284.

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fundamental rights under the Indian Constitution. The crux of the case was the clash between
Muller's individual rights and the government's claimed absolute power over matters of
national security and immigration.
The Supreme Court of India, in its judgment, acknowledged the government's authority to
regulate the entry and residence of foreigners in the interest of national security. It emphasized
the executive's discretionary power in such matters, citing the absence of justiciable rights for
aliens. The court held that Muller, being a foreigner, couldn't claim the same rights as Indian
citizens and that the government's decision to prohibit his entry was non-justiciable.
The case underscores the tension between individual liberties and the state's sovereign power,
particularly in the context of refugees. The court's ruling highlighted the wide latitude afforded
to the government in dealing with matters of immigration and national security, emphasizing
the absolute nature of executive authority in such cases. It set a precedent that, in situations
involving foreign nationals and potential threats to national security, the government's actions
may not be subject to detailed judicial scrutiny.21
Hans Muller of Nurenburg v Superintendent, Presidency Jail, Calcutta, remains a significant
legal reference point in discussions about the scope of government powers, especially
concerning refugees, and raises pertinent questions about the balance between national interests
and individual rights in the face of political upheaval and global conflicts.
The same case is also cited by supreme court in its latest Judgement in the case of Kinadhan
Chakma v Union of India and Ors Delhi HC W.P.(CRL) (1950/2023)22 in this case the court
reiterated its stand and held emphasizing the absolute power of the Government of India to
expel foreigners without constitutional fetters.
The Court rejected a habeas corpus plea for a suspected Bangladesh national, Azal Chakma,
apprehended for obtaining Indian documents fraudulently. The judgment emphasized
Chakma's failure to explain his entry into India and affirmed the government's authority to
deport him.
In the case of Ktaer Abbas Habib Al Qutaifi v. Union of India (1999 CriLJ 91923), the Gujarat
High Court held that- “This principle prevents expulsion of a refugee where his life or freedom
would be threatened on account of his race, religion, nationality, membership of a particular
social group or political opinion. Its application protects life and liberty of a human being

21
LEGAL AUTHORITY, [Link]
presidency-jail-calcutta-and-others-2736, (15 October, 2023).
22
Kinadhan Chakma v Union of India and Ors, 2024 Live Law (Del) 47
23
Ktaer Abbas Habib Al Qutaifi v. Union of India 1999 CriLJ 919.

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irrespective of his nationality. It is encompassed in Article 21 of the Constitution, so long as

the presence of refugee is not prejudicial to the law and order and security of India.”24
In another case of the Delhi High Court, Dongh Lian Kham v. Union of India, 226(2016)
DLT 20825,stated, “The principle of “non-refoulement”, which prohibits expulsion of a refugee,
who apprehends threat in his native country on account of his race, religion and political
opinion, is required to be taken as part of the guarantee under Article 21 of the Constitution of
India, as “non-refoulement” affects/protects the life and liberty of a human being, irrespective
of his nationality. This protection is available to a refugee but it must not be at the expense of
national security.
Thereby, the state can act for its citizens for protecting its territory for the interest of its people
and can take the appropriate step followed by the due procedure which is being presentable in
the present case. The state had acted on its given power and deported the refugees. They could
not claim refugee rights in the aquila territory on the constitutional grounds as well as the
international law as the states power in this matter is absolute which currently is being exercised
by the aquila, which can be expected from any sovereign nation acting on behalf of its people.
3.2 Aquila had porous land borders which could lead to larger refugee influx and become a
security threat
The state of aquila had porous land border which cannot be easily guarded and protected by
the security forces, even some of an area cannot be easily monitored as the geography of aquila
is quite indifferent in nature from other countries, the state had many enemy which
consequently tries to hinder the security of aquila and try to enter the territory of aquila, this
mass refugee influx could create a massive influx in the territory of aquila and could create
ruckus in its borders which could lead to the entry of anti-social elements in the country.
Formerly there have been cases where terrorist have taken the advantage of the porous border
of the aquila, many caves and underground tunnels were found in the border area which lead
to the passage of infiltrators, this also lead to an attack in 2016 in aquila in which 20 soldiers
of aquila had died. Further it is the reason why aquila is taking every preventive measure to
guard its border and to take every measure to not let any foreign element enter its territory
specially in the name of taking refuge.26

24
Nupur Thapliyal, Foreigners can’t claim right to reside and settle in India their fundamental right is limited only
to Article 21, LIVELAW 12 January 2024, 9:29 AM [Link]
high-court-foreigners-right-to-reside-settle-in-india-246482?infinitescroll=1.
25
Dongh Lian Kham v. Union of India, 2015 SCC OnLine Del 14338 : (2016) 226 DLT 208
26
PUSHPITA DAS, INDIA’S APPROACH TO BORDER MANAGEMENT FROM BARRIERS TO BRIDGES
35 (Kalpana Shukla 2021).

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The counsel humbly submits before the honourable court that according to the intel by the
security agencies of aquila provided that these refugees possess a serious threat to the internal
security and the continuous exodus could lead to the larger security threat as well as a chance
for militants to cross the border of the aquila27. Therefore the actions of aquila are justified.
3.2.1 History of terrorism in aquila caused by neighbouring countries
The Republic of Aquila has been a victim of terror attacks from its neighbouring countries
itself, the region of the aquila subcontinent has been disturbed erstwhile. There are many
insurgencies took place in the state and terror attacks as well which were well sponsored by the
neighbour states. There are thousands of victims of that terror URI attack is been a prominent
example as well as attack on assam riffle soldiers as well which took lifes of many soldiers,
this all has been caused due to the porous border and cross border terrorism which made
terrorist easily cross the border of aquila, this is been the reason why aquila government had
put its stans absolute in this refugee crisis of volan refugees.
The MHA letter recalled the guidelines it addressed to all States on 8 August 2017 “wherein
instructions were issued to sensitize all law enforcement and intelligence agencies for taking
prompt steps in identifying the-illegal migrants and initiate the deportation processes
expeditiously and without delay”. It also mentioned another set of guidelines to States sent on
28 February 2018 “advising them to sensitize the law enforcement and intelligence agencies
for taking appropriate prompt steps for identifying illegal migrants, their restrictions to specific
locations as per provisions of law, capturing their biographic and biometric particulars,
cancellation of fake Indian documents and legal proceedings including initiation of deportation
proceedings as per provisions of law”.
As per the annual report of Ministry of Home Affairs 2004-05 Management of borders and the
coast has direct impact on internal security and, also, law and order. India has a long and porous
border some of which runs through difficult and inhospitable terrain.28 Forces inimical to the
country have been trying hard to take advantage of this phenomenon. Insurgents and militants
have set up their sanctuaries on the other side of the borders pushing into India men, arms,
drugs and money aimed at destablising the polity and economy of the country. Effective
management of borders and coast has, therefore, assumed critical importance in the context of
maintenance of internal security. Recognising this fact, a Department of Border Management
has been created in the Ministry of Home Affairs with a view to paying focussed attention to

27
28
MHA, 15

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the management of borders/[Link] is an brief fact that The Ministry of Home Affairs in its
affidavit to Honourable apex court had filed through an affidavit and declared that volan
refugees are threat to the national security of aquila29.
The intelligence agencies for the same had also provided the intel that the refugee influx may
result in a attempt to destabilize the peace in aquila and termed the refugee crisis as an attempt
to hinder the internal security of aquila. It also provided that some terror lords are paying for
the same to infilitrators to infiltrate in the territory of aquila. Therefore, indulging with the
refugees and keeping them in aquila territory would be a threat to the national security as well
as national interest of aquila.30
Hundreds of soldiers and civilians had lost their lives in this struggle and continuous threats by
the neighbouring countries, all these incidents are the rampant examples of terrorism and
infiltrations caused in the country by exploiting the borders of India. Thereby there is an dire
need to end the mass influx of refugees in the country to protect the national interest of the
Aquila and to safeguard the thousands of lives which have been victim of such grave incidents
in the past.
3.3 National security is an exemption provided under international covenants and declarations
itself ratified by Aquila.
The counsel humbly submits before the honourable court that the national security has been
treated as an exception under the international law itself which dealt with the refugee issue as
well as pleaded by the petitioners, for whose sake they are pleading for the duty of aquila to
grant refugee status to Volans.
The petitioners had raised contention that the aquila is bound by the refugee law indirectly as
it is provided under the International Covenant on Civil and Political Rights (ICCPR) 199631
but under the convention which aquila has also ratified provided under Article 13 states that
“an alien lawfully in the territory of a State Party to the present Covenant may be expelled
therefrom only in pursuance of a decision reached in accordance with law and shall, except
where compelling reasons of national security otherwise require, be allowed to submit the
reasons against his expulsion and to have his case reviewed by, and be represented for the

29
Bharti Jain, Illegal Rohingya immigrants pose threat to national security, says government, TIMES OF INDIA
(July 20, 2021) [Link]
security-says-government/articleshow/[Link]?from=mdr
30
Bikash Singh, Northeast on alert as threat of influx by Rohingyas looms large, THE ECONOMIC TIMES
(September 29, 2017, 11:59 PM), [Link]
alert-as-threat-of-influx-by-rohingyas-looms-large/articleshow/[Link]?from=mdr .
31
MOOT PROPOSITION ¶ 9.

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purpose before, the competent authority or a person or persons especially designated by the
competent authority.”32
The article 13 of the convention clearly provides that when in the case national security erupts
it would be treated as an exception under the covenant. This article specifically negates the
contention by the petitioners and negates their contention as it itself mentions about the national
security. Not only this but there is an, another convention of United Nations itself which
provides that due process of law would be an exception to expel any refugee.
Article 3 of the UN Convention Against Torture signed by India also prohibits expulsion of an
alien except by due process of law.33 The convention clearly states that due process of law
would be an exception in dealing with the expulsion of any refugee or alien.
Thereby, in the present case the due process of law could be the SOP of ministry of home affairs
of 2011 which got revised in 2019, that provides about the procedure for treating refugees as
well as the foreigners act, 1946 which could be treated as an appropriate law for the subject
matter and according to it the action of state of aquila are justified and could be termed to be
followed the due process of Law.
In case of Mohammed Salimullah & anr v. UOI and Ors(202134) Supreme court of India
opined that “No doubt that the National courts can draw inspiration from International
conventions/treaties, so long as they are not in conflict with the Municipal (State) Law”. So in
deporting none of the constitutional provisions are binding unless there specific refugee law in
vogue. Another finding by SCI was that sovereignty and internal security is prime importance.
Therefore, the counsel humbly submits that the contention raised by petitioners are vague as it
itself negated in its true sense as it itself provides National security as an exception for any
state party dealing with the refugee crisis, thereby the actions of the republic of aquila are
justified as per the International Law also and Domestic as well which gives power to any
sovereign nation to balance between the National Interest of the nation and the Human rights
of individual considering the economic, social and political conditions of the nation.

32
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United
Nations, Treaty Series, vol. 999, p. 171, [Link] (Las16 January
2023).
33
UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85,
[Link] (Last Visited 16 January 2024).
34
Mohammad Salimullah v. Union of India, AIR 2021 SC 1789.

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ISSUE 4 - WHETHER FOREIGNERS ACT,1946 IS JUSTICIABLE IN TERMS FOR

DERIVING REFUGEE STATUS IN INDIA ?

The counsel humbly submits before the honourable court that the Foreigners act,1946 is
justiciable in terms for deriving refugee status in India, as it is the appropriate law which deals
with the refugees and it provides the power to central government to deport any person who is
a non- citizen which is defined under the section 2(a) of the Foreigners Act,1946 and the right
to reside in aquila which is a fundamental right under article 19(1)(e ) is not absolute, as the
government has the power to deport any foreigner under the act and the power of government
is justified under the act. The counsel would support its contention in a threefold manner.
Firstly, The Provisions of the act empowers central government to deport any foreigner.
Secondly, Power to detain an foreigner under the 1946 act. Thirdly, The Domestic law would
prevail over international law in case of conflict and where the National interest of state is in
danger.
4.1 The Provisions of the act empowers central government to deport any foreigner.
The counsel humbly submits before the honourable court that the Indian immigration laws
provide sweeping powers to the government. The counsel admits that there is no national law
on refugees particularly but there is an SOP of Ministry of Home affairs as well as the
foreigners act is the appropriate law in dealing with the current issue. The Ministry of Home
Affairs had circulated a “Standard Operating Procedure (SOP) w.e.f. 29-12-201135 for dealing
with foreign nationals who claim to be refugees” for grant of the Long Term Visa (LTV)” where
“prima facie the claim (of refugee) is justified, (on the grounds of a well-founded fear of
persecution on account of race, religion, sex, nationality, ethnic identity, membership of a
particular social group or political opinion)” and “the general perceived condition in the home
country of the people belonging to the community of the foreigner making the claim.”
However, the SOP is seldom followed. India treats all foreigners whether illegal immigrants,
refugees/asylum seekers or those overstaying following grant of visa under – the Foreigners
Act of 1946, the Passport (Entry into India) Act, 1920, the Registration of Foreigners Act of
1939, and the Citizenship Act, 1955 The foreigners act is the appropriate law which deals with
the refugees and deportation.36

35
INDIA: THE STATUS OF REFUGEES 2021, 10, Rights and Risks Analysis Group, (2021).
36
The Foreigners Act, § 3, No. 31, Acts of Parliament, 1946 (India).

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Noteworthy amongst them is Section 3 (1) of the Foreigners act, which states that the
government has the power to prohibit or regulate the entry of foreigners in India or their
departure therefrom. The Act does not refer to the rule of non-refoulement and provides
complete authority to the government to decide the fate of individuals.
the section 2(a) of the foreigners act defines the definition of foreigner, “foreigner” means a
person who is not a citizen of India. As well the section 3(1) states that Power to make orders.—
(1) The Central Government may by order make provision, either generally or with respect to
all foreigners or with respect to any particular foreigner or any prescribed class or description
of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 1 [India] or
their departure therefrom or their presence or continued presence therein.
Aquila treats all foreigners whether illegal immigrants, refugees/asylum seekers or those
overstaying visa permits under – the Foreigners Act of 1946, the Passport (Entry into India)
Act, 192037, the Registration of Foreigners Act of 193938, and the Citizenship Act, 1955. Under
Section 3 of the Foreigners Act of 1946, the Central government is empowered to detect, detain
and deport illegal foreign nationals and while Section 5 of the Passport (Entry into India) Act
of 1920 authorises to remove an illegal foreigner by force under Article 258(1) of the
Constitution of India.39 Further, under Article 239(1) of the Constitution of India40,
Administrators of all Union Territories have also been directed to discharge the functions of
the Central Government relating to the aforesaid powers.
4.2 Power to detain an foreigner under the 1946 act.
The counsel humbly submits before the honourable court that the power to detain foreigners
has been justified under the act and the contention raised by petitioners that state has no power
to detain refugees is provided under the act. Under section 3 Power to Make orders- In
particular and without prejudice to the generality of the foregoing power, orders made under
this section may provide that the foreigner— [(g) shall be arrested and detained or confined;]
and may make provision 4 [for any matter which is to be or may be prescribed and] for such
incidental and supplementary matters as may, in the opinion of the Central Government, be
expedient or necessary for giving effect to this Act.
The section itself justified the powers of the republic of aquila to act in consisting refugee
matters is being truly justified under the act. In 2021, at least 174 Rohingyas were in detention

37
The Passport (Entry into India) Act, § 5, No. 34, Acts of Parliament, 1920 (India).
38
The Registration of Foreigners Act, No.16, Acts of Parliament, 1939 (India).
39
INDIA CONST. art. 258, § 1.
40
INDIA CONST. art. 239, § 1.

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in Jammu and Kashmir. On 6 March 2021, the Jammu and Kashmir Administration conducted
a drive to collect biometric and other details of Rohingya staying in Samba district of Jammu
and Kashmir. During the process, at least 168 Rohingyas were sent to a holding centre, under
section 3(2)e of the Foreigners Act and later shifted to a sub-jail in Kathua district after they
were found living in Jammu city without valid documents. Police said the immigrants were not
holding valid travel documents required under section (3) of the Passports Act.
Inspector general of police (Jammu zone) Mukesh Singh said that illegal immigrant Rohingyas
staying in J&K were sent to the holding centre established vide home department notification
dated 5 March 2021.198 On 9 September 2021, four Rohingyas identified as Mohadad Salam,
Omar Faruk, Hassina Begum and Mustkima were arrested by police at Lakhanpur border in
Kathua district for illegally entering into India.
4.2.1 The Powers of the act are justified as it proves to act against terrorism as well as saviour
of National seccurtiy.
On 17 October 2021, two Rohingyas identified as Abdul Amin and Abdul Salim having
UNHCR identity cards were apprehended by the Indian Army at Kaluchak in Jammu for
suspicious movement. Both of them were living at Jamaat Ali Plot, Narwal in Jammu. The two
persons possessed mobiles that allegedly had contacts from Pakistan and Myanmar. Later, they
were handed over to the police for investigation.
The Geneva convention of 1955 hinders the sovereignty of the nations by indulging UNHCR
as an agency designate to determine the status of refugees.41 The counsel humbly submits
before the honourable court that how an other non state agency could determine the status of
refugee in other nations territory, thereby aquila did not recognise the UNHCR refugee cards
as an authority to recognise refugee status as it remains within the powers and jurisdiction of
aquila to determine the refugee status of anyone as it remains the internal matter of aquila to
decide upon the matter.
The counsel humbly submits before the honourable court that these incidents which prove that
refugee influx is created to harm national security of country and harm its citizen is quite
evident that how foreigners act have been proved to be effective in its enforcement and curbing
terrorism. These incidents are the prove how some miscreants refugees had links with the terror
outfits and it is necessary to deatain such persons to save the national interest of the country

41
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty
Series, vol. 189, p. 137, available at: [Link] (Last Visited16 January
2024).

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and it is the foreigners act, 1946 which gives such power to government to act in its best sense
to save the country.42
4.3 The Domestic law would prevail over international law in case of conflict and where the
National interest of state is in danger.
The counsel humbly submits before the honourable court that municipal law which is the
foreigners act, 1946 is the appropriate law in dealing with the refugee crisis in aquila and where
there arose a conflict between international law and municipal law then the national interest
should be prioritised. As every time the international law cannot be respected because the
national interest comes first.
The foreigners act would prevail all over the international conventions and covenants, as in the
circumstances of The every nation or state is different as well as the geo political conditions of
that particular subcontinent is different, therefore every time the uniform international
humanitarian law cannot be enforced as well as respected by the nations in lieu of commitment
towards the international society as it is necessary for every nation to first prioritise its affairs
first and to look upon the national interest of the state.
the Supreme Court in its landmark judgement on the right to privacy dated 24 th August 2017,
in, Justice K.S. Puttaswamy (Retd) and Anr. v. UOI and Ors43, has categorically stated,
“Constitutional provisions must be read and interpreted in a manner which would enhance their
conformity with the global human rights regime. India is a responsible member of the
international community and the Court must adopt an interpretation which abides by the
international commitments made by the country particularly where its constitutional and
statutory mandates indicate no deviation.”
Thereby, the particular statement by the honourable apex court could be interpreted in its
original sense which particularly describes the power and importance of municipal law of the
nation held that if the international law is being in conflict with the statutory mandates so in
that particular case the domestic law should prevail over the International Law, which clears
the way for the justiciability of the foreigners act and describes the efficient use of power by
the government of aquila in protecting its national interest.
4.3.1 Ancient stance on granting refugee status- the debate in municipal councel of Taxilla back
in 326 BC.

42
Dipankar De Sarkar, Why India won,t Sign Refugee treaty, MINT (11 September 2015, 1:12 AM), Why India
won’t sign Refugee Treaty | Mint ([Link]).
43
Justice KS Puttaswamy (Retd) And Anr. V. UOI and Ors., (2017) 10 SCC 1,

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The counsel humbly submits before the honourable court that the law has become from
customs, the customs are the general practices or consciousness of the society which took form
of custom then law. The counsel would like to highlight an historic debate because it took the
same value which constitutional assembly debate will took after 2000 year later.
As Alexander began its conquest in 326 BC which resulted in a refugee crisis in the western
India at that time, large refugee influx has been developed and they reached taxilla for
help.44The debate is happening on the subject of granting asylum to refugees in the territory of
Taxilla in which the clan leader Burhigriva is favouring for granting refuge to the refugees in
taxilla territory while the general of taxilla Ripudaman is opposing the same in that municipal
council, the arguments by Ripudaman were as follows that
Ripudaman : “ Stop these talks of tradition and humanity ! We are the only ones who talks of
tradition and humanity and its we only who get Obliterated, Talking about the future relations
with different nations if we agree to clan leader Bhurigravah’s views then let the citizens of
Taxila be assured that Taxilla itself will soon find itself partitioned and bankrupt, the refugees
whom you are planning to resettle tomorrow they will demand their right to the land of Taxilla,
the Humanity that you are showing as an excuse to rehabilitate them that nation of
humanitarians tomorrow will run red with conflict on basis of religion and clan, And
humanitarians of that land will not stop the sword that will rise for that conflict tomorrow these
refugees will sit amongst you in the municipal meeting and influence your decisions.
Bhurigravha :“ in the Name of religion and clans don’t malign our traditions, Ripudaman
Ripudaman : “ Accept the truth, Bhurigravah ! Where Taxila’s future is in question there is no
place for emotions. Our religions different , our languages vary, our customs are different.
Tomorrow these difference will be the basis of discrimination and clashes will erupt. We do not
want to abandon our cultures do you think they will abandon theirs ?
Tomorrow these refugees will be an indivisible part of our nation and thry will sit amongst you
to demand the rightd hence discussed. Then your “humanitarian” hearts will feel fear to raise
weapons against them. Can the Muncipal council guarantee me that tomorrow these refugees
wont be the reason for Gandhara getting partitioned ?Can any Municipal member guarantee
me that in future these refugees will return to their homeland ? is the municipal council itself

44
BYJU’S, Battle of Hydaspes 326 BC - Background and Legacy [UPSC Ancient History Notes] ([Link])
(Last Visited 30 December, 2023).

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assured in the name of refugee rehabilation the government will not burden the citixens of
Taxila with new taxes ?45
Thereby, the counsel humbly submits before the honourable court that the sate of aquila has
the appropriate right to determine refugee status of any individual as well as the decision to
grant refugee status to anyone and exercise its powers through foreigners act ,1946 which
empowers central government to deport or detain foreigners under the act. The domestic laws
would prevail over the international law which was also reiterated by the honourable court In
an case of conflict between the two therefore the provisions of the act and the actions of the
government are justified as state is acting in national interest to safeguard its territory which
empowers state to take the appropriate action by state and in the present case acted well so far
in line with those power and detained the Volans which is in par the act justified under the
provisions of the foreigners act 1946 as well as actioning on the move to safeguard the
sovereignity of the state as well as the National Interest of the state.

45
“Chankaya” telecasted in Doordarshan- Debate on refugees, Link-
[Link]

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PRAYER

Therefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:

• TO DECLARE THAT ROA IS NOT BOUND BY THE PRINCIPLE OF NON

REFOULMENT
• TO DECLARE THAT ARTICLE 19(1)(E) IS AVAILABLE TO CITIZENS ONLY.
• TO DECLARE THAT THE NATIONAL SECURITY WOULD BE HINDERED
IF REFUGE TO VOLANS HAS BEEN PROVIDED AS WELL AS TO DECLARE
THAT THE ACTIONS OF REPUBLIC OF AQUILA ARE JUSTIFIED.
• TO DECLARE THAT THE FOREIGNERS ACT 1946 IS THE APPROPRIATE
LAW DEALING WITH THE REFUGEE CRISIS AND THE ACTIONS OF THE
GOVERNMENT ARE JUSTIFIED IN SECURING THE NATIONAL
INTEREST OF THE NATION

The Court may also be pleased to pass any other order, which the Hon’ble Court may deem fit
in the interest of justice, equity and good conscience.
Respectfully submitted
Counsel for Respondent

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