STATEMENT OF JURISDICTION

The appellant hereby, humbly submits the memorandum in this honourable court under
Article 136 of the constitution of Bharat, by way of special Leave Petition.

Article 136 if the Constitution of Bharat

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

it is humbly submitted that the Honourable court has the complete jurisdiction to adjudicate
over the present matter.
 STATEMENT OF ISSUES

1. whether the state is violating Article 21 providing fundamental right i.e. Right To Life ,
of the constitution of Bharat?
1.1. whether drohingyas can claim the protection of article 21?
1.2. whether the government is violating the international conventions and treaties by
denying to grant refuge to drohingyas ?
1.3. whether the government is bound to follow the principle of non- refoulment?
1.4. whether the action of the government to deport drohingyas is arbitrary?
2. whether the drohingyas are threat to security and integrity of nation?
2.1. whether they should be granted refuge on humanitism ground?
2.2. whether it is the duty of the state to protect them?
2.3. whether the drohingyas are the victims because of their eviction from the land which
is accquired by the state?
3. whether the koolhas is an independent private company?
3.1. whether the Koolhas is the agency of the state?
3.2. that the Supervision, finance, construction was done by Koolhas as per the
Agreement?
4. Whether the Koolhas is negligent in performing his duty to contract as per contract and
liable for civil action?
4.1. whether the Koolhas is absolutely liable for the negligent act committed?
4.2. whether the Koolhas has the requisite Mens Rea to determine the liability?

5.
SUMMARY OF PLEADINGS
 BODY OF PLEADINGS

ISSUE 1: whether the state is violating Article 21 providing fundamental

right i.e. Right To Life , of the constitution of Bharat?
RIGHT TO LIFE
article 21 provides "no person shall be deprived of his life or personal liberty except
according to the procedure established by law". this right has held to be the foundation head
of our laws.1 and this article can be claimed when a person is deprived of his right to "life and
personal liberty" by the "state" as defined by article 12. the right secured by article 21 is
available to every person, citizen or non- citizen. thus even a foreigner can claim this right.2
In the case of N.H.R.C v. State of Arnuachal Pradesh,3 the hon'ble court held that" our
constitution confers certain rights on human beings and certain other on the citizens. every
person is entitled to equality before law and equal protection of laws. so also, no person can
be deprived of his right to life and personal liberty except according to procedure established
by law. thus the state is bound to protect the life and liberty of very human being, be he a
citizen or ortherwise."
Thus article applies to even non-citizen of India. The Supreme Court has emphasized that
even those who come to India as tourists also
have right to live, so long as they are here, with human dignity, just as the State is under an
obligation to protect the life of every citizen in this country, so also the State is under an
obligation to protect the life of the persons who are not citizen"4
a alien can thus can claim the protection under article 21. it however doesn't include the right
to reside and settle in india, as mentioned in article 19(1)(e) which is applicable to citizens of
this country.

while section 3 of the foreigners act,1946 confers an absolute and unfetttered discretionary
sovreign power on the cental govt. to prohibit the entry of foreigners into india. but this
provision has to be read in consonance to article 13 of U.N. International Covenant on Civil
and Political Rights, 1966. in view the convention on civil and political rights and in view of
the article 51 of the constitution of bharat , which enjoins the central govt to foster respECt

1
I.R Coelho v. state of T.N., A.I.R 2007 SC 861
2
N.H.R.C v. state of Arnuachal Pradesh, A.I.R. 1996 SC 1234
3
A.I.R. 1996 SC 1234
4
Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988
for the international law and treaty obligations, it has been held that in teh matter of expulsion
of the foreign nationals who has already been allowed to be in bharat , a notice and
opportunity should be given to him before expelling him.5

Then the question is whether the dronhingyas being refugees are to be guaranted with the
protection under article 21. A definition is provided by Article 1 of the UN Declaration on the
Human Rights of Individuals who are not Nationals of the Country in which They Live (1985) in
which, A non-citizen is defined as-any individual who is not a national of a State in which he or she
is present. similarly a refugee is defined as A person who owing to a well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his or her nationality, and is unable to or,
owing to such fear, is unwilling to avail himself or herself of the protection of that country or
return there because there is fear of persecution. , as per the United Nations Convention
Relating to the Status of Refugees 1951 and Protocol 1967. thus, a refugee being a stateless
person can also be termed to be a non citizen

the article 3 of the universal declaration on human rights proviede for the right to life and
personal liberty to every human being whether he is a citizen or a non

also, In the matter of Gurunathan and others vs. Government of India[18]and others and in
the matter of A.C.Mohd.Siddique vs. Government of India and others[19] , the High Court of
Madras expressed its unwillingness to let any Sri Lankan refugees to be forced to return to Sri
Lanka against their will. In the case of P.Nedumaran vs. Union Of India6before the Madras
High Court, Sri Lankan refugees had prayed for a writ of mandamus directing the Union of
India and the State of Tamil Nadu to permit UNHCR officials to check the voluntariness of
the refugees in going back to Sri Lanka, and to permit those refugees who did not want to
return to continue to stay in the camps in India. The Honble Court was pleased to hold that
since the UNHCR was involved in ascertaining the voluntariness of the refugees return to
Sri Lanka, hence being a World Agency, it is not for the Court to consider whether the
consent is voluntary or not. Further, the Court acknowledged the competence and
impartiality of the representatives of UNHCR.

. In the matter of Malavika Karlekar vs. Union of India7, the Supreme Court directed stay of
deportation of the Andaman Island Burmese refugees, since their claim for refugee status
was pending determination and a prima facie case is made out for grant of refugee status.

5
hasan ali anlhany v. union of india, A.I.R 2006 SC 1714
6
1993 (2) ALT 291
7
criminal writ petition no. 583of 1992 dated 25.09.1992
THE GOVT. IS VIOLATING THE INTERNATIONAL CONVENTIONS
AND TREATIES ON REFUGEE

bharat does not have on its statute book a specific and separate law to govern refugees. Even
though India is not a signatory to the 1951 Convention on refugees and also the 1967
Protocol, but India is a signatory to a number of United Nations and World Conventions on
Human Rights, refugee issues and related matters. Indias obligations in regard to refugees
arise out of the latter.

bharat became a member of the Executive Committee of the High Commissioners

Programme (EXCOM) in 1995. The EXCOM is the organisation of the UN, which approves
and supervises the material assistance programme of UNHCR. Membership of the EXCOM
indicates particular interest and greater commitment to refugee matters. bharat voted
affirmatively to adopt the Universal Declaration of Human Rights which affirms rights for all
persons, citizens and non- citizens alike. article 14(1) of which providdes for -Everyone has
the right to seek and to enjoy in other countries asylum from persecution. it doesn't grant
individuals an absolute right to asylum, but it does obligate the state where the asylum is
sought to scrutunise the applicationfor asylum.this obligation of the state is clearly metioned
in the ICCPR, as the decision must be reached accordin to law before expelling an alien from
state's territory.8 though this article mentions persons who have entered the territory
lawfully," if a state party deports a person within its territory and subject to its jurisdiction in
such circumstances and as that result, there is a real risk that his or her rights under the
covenant will be voilated by the other jurisdiction, that state party itself may be in violation
of the covenant."9

another declaration for human rights in civil and political issue is the International Covenant
on Civil and Political rights. bharat has ratified the International Covenant on Civil and
Political rights and the International Covenant on Economic, social and cultural rightson
March27, 1979. Various rights given in the international covenant for civil and political
rights have been recognized in the bharat constitution in part 3 of the constitution. They may
also be called the specified fundamental rights because they mentioned in the constitution
by particular names. these rights provided under the convetion are Forced Labour under

8
ICCPR(N99) Aricle 13.
9
see A.R.J. vs. Australia, communication no. 692/1996,28 july 1997, humans right committee, UN Doc.
CCPR/C/60/D/692/1996
Article 8(3), Not to be compelled to testify against himself under Article 14(3)(g), Right to
life and liberty Article 6(1)and 9(1) .

apart from that there are several provisions in, ICESCR, CEDAW, and CRC upholding the
principle of non-refoulement either expressly or interpreted

Cosmopolitan Ideology of Immanuel Kant:

kant in his famous essay titled" perpetual peace ", develops a theory about the basis on which
a peaceful world can be created. peace will be attainable in this world, when the following
conditions are satisfied10:

1. there will be states with a republican model of governance. such states must have a
constitution.
2. there will be a federation of states. rights of the states shall be recognised through the
mutual agreement between the states.
3. there will be a right to hospitality for the individuals, limited to the extent that a state
can refuse the visitor unless there is a threat to life ad liberty upon such a refusal.

on the basis of these conditions mentioned kant formulated three kinds of right namely:
constitutional, international and cosmopolitan. the third category is teh most important among
the three for the protection of the refugees, as the right to hospitality is the core element of
cosmopolitan right. kants fisrt condition for the peaceful world has two components state and
constitution. the state must be a republican state having three diff. authorities legislature,
executive and judiciary, for proper functioning. kant's republican state is goverened by a
civil constitution in this way kant argued fot the constitutional rights for individual of
republican state

kant's second condition for attaining peace is formation of the federation states. Kant
envisions a federation of states united in a covenant around international law. Each nation-
state will agree to settle disputes via an international court.11 Perpetual Peace will arise as the
progress of reason in the species develops a Federation of Republican States.

in dealing with global justice , he tries to formulate the principles by which domestic and
global political institutions should abide. he further indicates that human rights are part of the
10
pauline kleingeld,'kant's cosmopolitan law: world citizenship for a global order ' (1998) 2 kantian review
72,74
reasonable law of peoples ,even in a non liberal society that has met several reasonable
conditions of domestic justice. thus kant in his theory provides for the right to hospitality to
the individuals, so as to form a peaceful world.

VIOLATION OF PRINCIPLE OF NON- REFOULEMENT:

ACTION OF THE GOVT. TO DEPORT WAS A ARBITRARY ACTION:

Protection From Arbitrary Expulsion:

A non-citizen may be expelled only to a country that agrees to accept him or her
and shall be allowed to leave for that country.
Instruments such as the United Nations Declaration on the Rights of Individuals who are not
Nationals of the Country in which They Live, which is non-binding, and Protocol No. 4 to the
European Convention on Human Rights prohibit the collective expulsion of non-citizens.
Any measure that compels non-citizens, as a group, to leave a country is prohibited except
where such a measure is taken on the basis of a reasonable and objective examination of the
particular case of each individual non-citizen in the group.11 In other words, the procedure
forthe expulsion of a group of non-citizens must afford sufficient guarantees demonstrating
that the personal circumstances of each of those non-citizens concerned has been genuinely
and individually taken into account.12 Hence, for example, if one member of a group of non-
citizens is found not to qualify for refugee status because there is a safe country of origin and
is ordered to be deported, the other members of the group cannot be ordered to be deported
unless they too are individually deemed not to qualify for refugee status.13
States may not consciously facilitate the detention of non-citizens in a planned operation to
expel them by encouraging them to report to the authorities on the basis of a pretext.14

11
Conka v. Belgium. Mass expulsions on the basis of nationality, religion, ethnic, racial or other
considerations constitute human rights violations, see African Commission on Human and Peoples Rights,
Union Inter Africaine des Droits de lHomme and others v. Angola
12
Conka v. Belgium; European Commission against Racism and Intolerance, Second report on Finland (CRI
(2002) 20, paras. 4657).
13
See European Court of Human Rights, Andricv. Sweden, No. 45917/99, decision of 23 February 1999; see
also African Commission on Human and Peoples Rights, World Organization against Torture and others
v.Rwanda, communications Nos. 27/89, 46/91, 49/91, 99/93 (October 1996).
14
Conka v. Belgium
The case of Conka v.Belgium involved a family of fourtwo parents and two childrenof
Slovak nationality and Roma descent. After falling victim to a violent attack by skinheads in
Slovakia that resulted in the hospitalization of the father, the family fled Slovakia and entered
Belgium, where they sought asylum. Their request, however, was denied, on the ground that
they had not produced sufficient evidence to show that their lives were at risk in Slovakia for
the purposes of the Convention relating to the Status of Refugees. The decision denying the
family permission to remain in Belgium was accompanied by a decision refusing them
permission to enter the territory, itself endorsed with an order to leave the territory within five
days. The family received a written notice at the end of September 1999 inviting them to
present themselves at Ghent police station, in Belgium, on 1 October to enable the file
concerning their application for asylum to be completed. Upon their arrival at the police
station, the family was served with the order to leave the territory, dated 29 September 1999,
along with a decision for their removal to Slovakia and for their arrest for that purpose. They
werethen detained and, a few hours later, were taken to a closed transit centre at
Steenokkerzeel (Belgium).
The European Court of Human Rights held that, while law enforcement officials may use
stratagems in order, for instance, to counter criminal activities more effectively, acts whereby
the authorities seek to gain the trust of non-citizensand asylum-seekers in particularwith
a view to arresting and subsequently deporting them may be found to contravene the general
principles stated or implicit in the European Convention on Human Rights. It follows that,
even as regards persons who overstay their visas, a conscious decision by the authorities to
mislead them about the purpose of a notice so as to make it easier to deprive them of their
liberty is not compatible with article 5 of the Convention, which guarantees the right of
everyone to liberty and security of the person but permits the lawful arrest or detention of a
person to prevent his effecting an unauthorized entry into the country or of a person against
whom action is being taken with a view to deportation or extradition. Communications sent
to asylum-seekersirrespective of whether they are lawfully in the countrymust not,
therefore, be misleading or deceptive. There is, nonetheless, significant scope for States to
enforce their immigration policies and to require departure of unlawfully present persons,
such as those who remain in a State longer than the time allowed by limited-duration
permits.15 Yet that discretion is not unlimited and may not be exercised arbitrarily.

15
Human Rights Committee, views on communication No. 930/2000, Winatav. Australia, 26 July 2001
(A/56/40 (vol. II), annex X, sect. T, para. 7.3).
Non-citizenseven non-citizens suspected of terrorismshould not be expelled without
allowing them a legal opportunity to challenge their expulsion.16The International Covenant
on Civil and Political Rights, however, provides the right to certain procedural protections in
expulsion proceedings (art. 13) only to non-citizens lawfully in the territory of a State party

ISSUE OF HUMANITARIAN GROUND

To deny people their human rights is to challenge their very

humanity
-
Nelson
Indian culture has always emphasised on humanity above national interests. Tolerance to
different world views is part of India's cultural ethos.

This can be seen in our history of granting refuge and political asylums.
1. Dalai Lama and his followers were granted poltical asylem on humanitarian grounds
despite it led to hostility with China.
2. Liberals like Tasleema Nasreen were granted asylum, demonstrating our commitment to
protect freedom of speech.
3. Similarly, in 1971 India- Bangladesh war , over 10 million Bangladeshis were granted
refugee status for short time.
4. In addition to that religious minorties who have faced persecution have been allowed to
stay in India.
Having said, despite past good credentials and best intentions, India does not have refugee or
asylum policy. It is also not a signatory of United nation convention on refugees, 1951.
Presently, India is adopting a more proactive approach in this regard.

India followed - Atithi Devo Bhava. Guests are like God. India with its history, culture,
traditions, is today an example of generosity in the way it has opened its borders to all people
who have come looking for safety and sanctuary. There are Tibetans, Afghans, Myanmarese
in India and it has maintained an open door policy for all. India has a generous approach in
relationship to all people and a proof of that is the granting of long term visas and work
permits to refugees.

Indias Position on international Forum :-

16
Human Rights Committee, concluding observations on the third periodic report of Yemen. Indeed, before
expelling a non-citizen, States should provide effective safeguards and remedies. Human Rights Committee,
concluding observations on the second periodic report of the Syrian Arab Republic (A/56/40 (vol. I), para. 81
(22)).
 India has signed neither the 1951 United Nations Refugee Convention nor its 1967 Protocol,
which has 140 signatories, an overwhelming majority of the worlds 190-odd nations.
However, India continues to host a large population of refugees. In the main, they are treated
kindly.

Reasons for not having Refugee policy

india is beset socio-economic challenges since independence . Poverty levels around 21% ( Tendulkar
committee ) , indicators of health like IMR , MMR , indicators of Education like gender parity are low
compared to other countries. there is need of judicious utilisation of stressed resources . In context
of above , it was unwise to have refugee policy , due to inability to provide them adequate quality of
life.Moreover there were protest against the refugees like in Assam and apprehensions of their
diluting the cultural identity of native