2nd Deo Mangal Memorial National Moot Court Competition, 2023

NSL-06-R

2nd Deo Mangal Memorial National Moot Court Competition, 2023

___________________________________________________________________________________________

BEFORE THE HON’BLE SUPREME COURT OF JUDICATURE

AT ARYAVART

___________________________________________________________________________________________

Writ Petition. No. ______ / 2023

IN THE MATTER OF:

Mrinal & Akram………………….…………………………………..…Petitioners

v.
Government of Aryavart………………....……………………………Respondents

-AND-

Writ Petition. No. ______ / 2023

IN THE MATTER OF:

Samridhi…………………………….……………………………………Petitioners

v.
Government of Aryavart………………….…………………………….Respondents

-AND-
All Indus Muslim Personal Law Board……………………….Impleading Applicant

FILED UNDER ARTICLE 32

OF THE CONSTITUTION OF ARYAVART, 1950
__________________________________________________________________________________________

-MEMORANDUM FILED ON BEHALF OF THE RESPONDENTS-

-COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS-
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TABLE OF CONTENTS

Sl. No. Topic Title Page No.

1. Cover Page 1
2. Table of Contents 2
3. Index of Authorities 3-5
4. List of Abbreviations 6
5. Statement of Jurisdiction 7
6. Statement of Facts 8-9
7. Issues Raised 10
8. Summary of Arguments 11-12
9. Arguments Advanced 13-33
ISSUE 01: Whether the Public Interest Litigation is 13-18
maintainable in the Supreme Court of Aryavart and whether the
Impleading Application by the All Indus Muslim Personal Law
Board is maintainable before this Hon’ble Court?
ISSUE 02: Whether Uniform Civil Code is violative of one’s’ 18-25
Fundamental rights and other personal rights guaranteed under
the Constitution of Aryavart and is it the States’s interference in
the realm of the personal laws of the subjects?
ISSUE 03: Whether the non-issuance of the Birth Certificate for 25-27
the child born from a LGBTQIA+ couple is violation of the
Child’s right by the state?
ISSUE 04: Whether the Constitutional power of Court to frame 27-32
laws has led to the scenario where Legislature have become the
Executive wing of the Judiciary?
10. Prayer 33

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INDEX OF AUTHORITIES

BIBLIOGRAPHICAL INFORMATION

I. CASES CITED:
Sl. No. Case Name Equivalent Citation(s)

1. A.R Antulay v. R.S. Nayak. [1984] 2 S.C.R. 495.

2. Ahemedabad Women Action Group v. Union AIR 1997 SC 3614: (1997) 3
of India. SCC 573.
3. All India Manufacturers Organisation v. State 2005 (3) KarLJ 521.
of Karnataka and Ors.,.
4. Aravali Golf Course v. Chander Hass. (2008) 1 SCC 683
5. Aruna Roy v. Union of India. AIR 2002 SC 3176.
6. AS Narayana Deekshitulu v. State of Andhra (1996) 2 SCC 498.
Pradesh.
7. Ashok Babarao Patil v. The State of 022 LiveLaw (Bom) 392.
Maharashtra & Ors.
8. Ashok Kumar Pandey v. State of West Bengal. (2004) 3 SCC 349.
9. Bal Patil and Anr. v. Union of India. SC Appeal (civil) 4730 of 1999.
10. D. Venkatasubramaniam v. MK Mohan (2009) 10 SCC 488.
Krishnamachari.
11. Gurpal Singh v. State of Punjab & Ors. (2005) 5 SCC 136.
12. IC Golaknath v. State of Punjab AIR 1967 SC 1643.
13. Indira Nehru Gandhi v. Raj Narain. 1975 AIR SC 2299.
14. J. Jayalalitha v. C. Kuppusamy & Ors. SC CrL Appeal No. 1833 Of
2012.
15. Krishna Singh v. Mathura Ahir. AIR 1980 SC 707.
16. Kusum Lata v. Union of India. (2006) 6 SCC 180.
17. Lily Thomas v. Union of India. AIR 2000 SC 1650 : (2000) 6
SCC 635.
18. Louise Fernandes v. Union of India. (1998) 1 SCC 201.

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19. Maharshi Avadesh v. Union of India. (1994) Supp. (1) SCC 713
20. N. Adithyan v. Travancore Devaswom Board 2002 (8) SCC 106.
& Ors.
21. Parayankandiyal v. K. Devi & Others. 1996 SCC (4) 76.
22. Peoples Union for Democratic Rights v. Union AIR 1982 SC 1473.
of India.
23. Punnakkal Suresh v. Saraswathi. AIR 2019 Ker 48 : OP(C)No.
814 of 2016.
24. R&M Trust v. Koramangala Residents (2005) 3 SCC 91.
Vigilance Group.
25. M. Ismail Faruqqui v. Union of India (Ram AIR 1995 SC 605.
Janmabhoomi case).
26. Rashid v. I.T. Commission. AIR 1954 SC 207.
27. Razia Begum v. Sahebzadi Anwar Begum. AIR 1958 SC 886.
28. Rupa Ashok Hurra v. Ashok Hurra. AIR 2002 SC 1771.
29. S.P. Gupta v. Union of India. AIR 1982 SC 149.
30. S.R. Bommai v. Union of India. 1994 SCALE (2) 37.
31. Sardar Taheruddin Syedna Sahib v. State of AIR 1962 SC 853.
Bombay.
32. Sarla Mudgal v. Union of India. AIR 1995 SC 1531 : (1995) 3
SCC 635.
33. Savitri Devi v. District Judge. (1999) 2 SCC 577.
34. St. Xavier College v. the State of Gujarat. AIR 1974 SC 1389.
35. State of Bombay v. Narasu Appa Mali. AIR 1952 Bom 84.
36. Supreme Court Advocates- on-Record- (1993) 4 SCC 441.
Association v. Union of India.
37. Swaraj Abhiyan-(1) v. Union of India & Ors. Writ Petition (C) No. 857 of
2015.
38. Union of India v. Paul Manickam. AIR 2003 SC 4622.
39. Union of India v. TR Verma. AIR 1957 SC 882.
40. United States v. Windsor. 570 U.S. 744 (2013).

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II. INDIAN & INTERNATIONAL LAWS REFERRED:

Sl. No. Statute Name Sections/Articles/Clauses
referred
1. The Code of Civil Procedure, 1908. Order 1 Rule 10.
2. The Code of Criminal Procedure, 1963. Section 125 (b).
3. The Constitution of India, 1950. Article 25, 29, 32, 44, 124
142.
4. The Hindu Marriage Act, 1955. Section 5 (1).
5. The Muslim Personal Law Application Act, 1937. Section 2 (7).

III. DICTIONARIES AND BOOKS/JOURNALS REFERRED:

Sl. No. Dictionary/ Book/Journal

1. Bhakshi.P, The Constitution of India Bare Act 2023, Universal Law Publishers.

2. Black Law’s Dictionary, 9th Edition.

3. Dr. M.P. Singh “Uniform Civil Code- A never ending dilemma in India” edited
by Dr. Sarfaraz Ahmed Khan and Ahmar Afaq.

4. Merriam-Webster Law Dictionary.

5. MP Jain’s “Indian Constitutional Law” 9th edition 2023 Lexis Nexis.

IV. ELECTRONIC/ONLINE SOURCES:

1. http://supremeCourtofindia.nic.in
2. http://www.advocatekhoj.com
3. http://www.barcouncilofindia.org
4. http://www.legalservicesindia.com/
5. http://www.manupatrafast.com/
6. https://indiankanoon.org/
8. https://www.lawteacher.net
10. https://www.scobserver.in/
9. SCC Online
11. www.indiacode.nic.in

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LIST OF ABBREVIATIONS

Sl.No. Abbreviation Description

1. & And
2. AIR All India Reporter
3. Anr. Another
4. Art. Article
5. C.L.J. Criminal Law Journal
6. CPC The Code of Civil procedure, 1906.
7. F.I.R. First Information Report
8. Govt. Government
9. Hon’ble Honourable
10. i.e. That is
11. IPC The Indian Penal Code, 1860.
12. LGBTQIA+ Lesbian, Gay, Bisexual, Transgender, Queer,
Intersex, Asexual etc.
13. Ltd. Limited
14. NGO Non-Governmental Organisation
15. Ors. Others
16. P.R. Public Relations
17. Pvt. Private
18. SC Supreme Court
19. U.O.I. Union of India
20. u/s Under section
21. UCC Uniform Civil Code
22. v. Versus
23. W.P. Writ Petition

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STATEMENT OF JURISDICTION

It is humbly submitted that this Hon’ble Supreme Court of Judicature in Aryavart has
jurisdiction to entertain matters under Article 32 of the Constitution of Aryavart, 1950, which
reads as under:

“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 warranto 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 clause ( 1 ) and ( 2 ),
Parliament may by law empower any other Court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution”1

The present memorandum sets forth the facts, contentions, and arguments in the present case.
The respondents respectfully do not submit to the jurisdiction of this Honourable Court.

1
INDIA CONSTI. art. 32.

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STATEMENT OF FACTS

INTRODUCTION/BACKGROUND:
1. Aryavart is a Sovereign conservative country in Asiana comprising 28 States and 8 Union
territories. Its population is around 140 crores in which 70% practise Hinduism, 20%
practice Islam, and the remaining 10% practice other religions. Only the State of Kankan
which was a Portuguese colony has Uniform Civil Code is successfully implemented
Uniform Civil Code in Aryavart.
2. Mrinal who is a Hindu trans-man is in a relationship with Akram who is a Muslim
transwoman. They both are residents of Avanti State which doesn’t have Uniform Civil
Code. They both have been in a relationship since 2010 at a time when same-sex
relationships were socially unacceptable. They were unable to openly proclaim their
relationship because of the social set up of the Country & the State.
3. In the year 2018, the Hon’ble Supreme Court of Aryavart decriminalized homosexuality,
which had infused a sense of confidence among the LGBTQ+ community in the Country.
Though the harassment by the authorities had stopped due to decriminalization of
homosexuality by the Hon’ble Supreme Court yet the homosexual couples still faced
discrimination and stigma in the society. There was a misconception in the society about
the gender identity of the individuals. The societal norm had only male and female stratum
and entire government machinery ran around recognizing only these genders. Though, in
recent times there were identification of transgender rights in some areas, there were still
huge lacunae in recognizing their rights in most of the field especially that of marriage.
4. The couples in the present case, then, decided to publicly disclose their relationship and
to get officially married. They respected each other’s faith and decided to get married
under their respective Customs. Their wedding was attended by their near and dear ones.

SERIES OF EVENTS:
5. Though, friends and family supported their marriage, they were unable to get their
marriage officially registered as neither of them fell under the definition of ‘bride’ and
‘groom’ and moreover they belonged to two different religions.
6. In the meantime, Mrinal gets pregnant and gave birth to a healthy baby boy. Their problem
got complicated as they were unable to get Birth Certificate issued for their son as the

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same required name of father and mother and in their case though Mirnal gave birth to
the child, Mirnal identified to be a male and therefore the father. Moreover, since their
marriage itself could not be registered, they were unable to get Birth Certificate for their
child.
7. Their applications for Birth Certificate and Marriage Registration were rejected by the
authorities in the State of Avanti. Because of lack of a Uniform Civil Code to govern the
personal laws, they were stuck in a limbo. Hence, they have decided to approach this
Hon’ble Supreme Court under Article 32 of the Constitution of Aryavart with plea of
issuance of Birth Certificate to their child, recognition of their marriage and consequently
sought to implement a Uniform Civil Code which recognizes both same sex marriage and
interreligious marriage and grants equal rights to all irrespective of sex and religion.
8. Meanwhile, an NGO - Samridhi working for the welfare of Muslim women has been
fighting to implement Uniform Civil Code across the Country. Though there were various
legislations governing law of maintenance and other Secular issues, it was seen that by
and large Muslim women were unable to access them. In order to provide access to justice
and legal rights, the NGO had filed a Public Interest Litigation seeking to implement
Uniform Civil Code throughout Aryavart before this Hon’ble Supreme Court.

EMERGENCE OF ISSUES:
9. The All-Indus Muslim Personal Law Board is opposing Implementation of Uniform Civil
Code as they claim that it infringes the Muslim personal rights. Hence, the Board has filed
Impleading Petitions in both the Public Interest Litigations filed by the NGO and the
Trans-couple along with violation of Secular structure of the Aryavart.
10. The Government of Aryavart is supporting to impose Uniform Civil Code and has also
made it as their election agenda. However, the Government is opposing a Uniform Code
which recognizes LGBTQIA community stating that such marriages are not recognized
in any religions.
11. The Trans-Couple are opposing the Impleading Petition filed by All Indus Muslim
Personal Law Board as they find them not to be a necessary party to the proceedings.
Public opinion is being sought by various media networks and there are different views
and opinions supporting and opposing both the sides. The Supreme Court has posted all
applications together and necessity of impleading Indus Muslim Personal Law Board for
hearing.

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ISSUES RAISED

ISSUE 01: Whether the Public Interest Litigation is maintainable in the Supreme Court of
Aryavart and whether the Impleading Application by the All-Indus Muslim Personal Law
Board is maintainable before this Hon’ble Court?
1.1.Whether the Petition is lacking bona fide?
1.2.Whether there is any prima facie breach of Fundamental Rights established?
1.3.Whether the Petitioner has exhausted the Alternative Remedies?
1.4. Whether the Impleading Application filed by the All-Indus Muslim Personal Law Board
is maintainable?

ISSUE 02: Whether the Uniform Civil Code is violative of one’s’ Fundamental rights and
other personal rights guaranteed under the Constitution of Aryavart and is it the States’s
interference in the realm of the personal laws of the subjects?
2.1.Whether the implementation of Uniform Civil Code goes against the Principles of
Secularism?
2.2.Whether the implementation of Uniform Civil Code is an easy task in Aryavart?
2.3.Whether the State can interfere in the realm of Personal Laws?

ISSUE 03: Whether the non-issuance of the Birth Certificate for the child born from a
LGBTQIA couple is violation of the Child’s right by the state?

ISSUE 04: Whether the Constitutional power of Court to frame laws has led to the scenario
where Legislature have become the Executive wing of the Judiciary?

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SUMMARY OF ARGUMENTS

ISSUE 01: Whether the Public Interest Litigation is maintainable in the Supreme Court
of Aryavart and whether the Impleading Application by the All-Indus Muslim Personal
Law Board is maintainable before this Hon’ble Court?

It is humbly submitted that the Public Interest Litigation (Writ) Petitions filed by the Petitioners
are mala fide and the Petitioners in the instant case do not have sufficient interest. Further, no
Fundamental Rights of the Petitioner were infringed, therefore the Petitioners have no locus to
approach the Hon’ble Court, under the guise of a Public Interest Litigation. The trans-couple
petitioners have alternative remedies available and they have approached this Court only
wasting its precious time. Hence, these petitions filed are not maintainable. The Impleading
Application filed by the All Indus Muslim Personal Law Board is maintainable before this
Hon’ble Court in the interest of public justice.

ISSUE 02: Whether Uniform Civil Code is violative of one’s’ Fundamental rights and
other personal rights guaranteed under the Constitution of Aryavart and is it the States’s
interference in the realm of the personal laws of the subjects?

The Uniform Civil Code is violative of the rights of the LGBT community. Their personal
rights must not be touched upon. But Uniform Civil Code is essential for the welfare and to
protect the religious rights of citizens of the country. The implementation of the Uniform Civil
Code will cause serious problems to the Fundamental Right to Religion in the country. It will
adversely disturb the religious and customary practises particularly of the Muslim Personal
Law in Aryavart.

ISSUE 03: Whether the non-issuance of the Birth Certificate for the child born from a
LGBTQIA couple is violation of the Child’s right by the State?

It is humbly submitted that the non-issuance of the Birth Certificate for the child born from a
LGBTQIA couple is not a violation of the Child’s right by the state. The children of LGBTQ

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parents are reportedly vicarious victims of rampant homophobia and institutionalized

heterosexism. They suffer all of the considerable economic, legal and social disadvantages
imposed on their parents, sometimes even more harshly. In 2014, the largest study into the
health and wellbeing of children of same-sex parents ever conducted was undertaken in
Australia. The results established that “stigma related to parental sexual orientation is
associated with a negative impact on child mental and emotional wellbeing.” Moreover, the
LGBT+ marriages are not recognised in any religion, for it to be recognised under UCC.

ISSUE 04: Whether the Constitutional power of Court to frame laws has led to the
scenario where Legislature have become the Executive wing of the Judiciary?

It is most humbly submitted that the Constitutional power of Court to frame laws has led to
the scenario where Legislature have become the Executive wing of the Judiciary It is most
respectfully submitted that Judicial Review is a basic structure of the Constitution however
enacting legislation is not. The Constitution prohibits the Court from enforcing a Directive
Principle of State Policy. Courts can look into the validity of the law, but not necessarily make
a law. Judiciary lacks both time and resources to enact legislation. Sometimes practical
difficulties of such enactments are not known to the Courts.

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ARGUMENTS ADVANCED

ISSUE 01: Whether the Public Interest Litigation is maintainable in the Supreme Court
of Aryavart and whether the Impleading Application by the All Indus Muslim Personal
Law Board is maintainable before this Hon’ble Court?

The counsels for the Respondents humbly contend before this Hon’ble Supreme Court that the
instant matter is not maintainable because it lacks some essential ingredients. The issues
regarding the maintainability must be highlighted before this Court of Law to prevent any
miscarriage of justice.

1. It is humbly submitted that the Black’s Law Dictionary defines Public Interest as:
“Something in which the public, the community at large, has some pecuniary interest, or
some interest by which their legal rights or liabilities are affected. It does not mean
anything so narrow as mere curiosity, or as the interests of the particular localities, which
may be affected by the matters in question. Interest shared by citizens generally in affairs
of local, state or national Government.”2 The word ‘litigation’ means a legal action,
including all legal proceedings initiated in a Court of law with the purpose of enforcing a
right or seeking a remedy.
On observance of this, the petition filed by the Petitioners is not maintainable on by
examining the following sub-issues:
1.1. Whether the Petition is lacking bona fide?
1.2. Whether there is any prima facie breach of Fundamental Rights established?
1.3. Whether the Petitioner has exhausted the Alternative Remedies?
1.4. Whether the Impleading Application filed by the All-Indus Muslim Personal Law
Board is maintainable?

1.1. Whether the Petition is lacking bona fide?

2
Garner B.A., Black’s Law Dictionary, (9th ed., 2009).

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2. It is humbly submitted that locus standi is a right to appear in a Court or before anybody
on a given question: a right to be heard.3 In the following case the Petitioners have no Locus
Standi as the PIL filed by them is mala fide, does not have sufficient interest and there was
no infringement of Fundamental Rights.

3. It is humbly submitted that the Supreme Court in S.P. Gupta v. Union of India held that:
“Where a legal wrong or a legal injury is caused to a person or to a determinate class of
persons by reason of violation of any constitutional or legal right or any burden is imposed
in contravention of any constitutional or legal provision or without authority of law or any
such legal wrong is threatened by reason of poverty, helplessness or disability or socially
or economically disadvantaged position, unable to approach the Court for relief, any
member of the public can maintain an application for an appropriate direction, order or
writ in the High Court under Article 226 or to the Supreme Court under Article 32.” 4

4. It is humbly submitted that the relaxation of the rule of locus standi in the field of PIL does
not give any right to a busybody or meddlesome interloper to approach the Court under the
guise of a public interest litigant.5 And this was further emphasized when the Court
observed that:
“But we must be careful to see that the member of the public, who approaches the Court
in cases of this kind, is acting bona fide and not for personal gain or private profit or
political motivation or other oblique consideration. The Court must not allow its process
to be abused by politicians and others to delay legitimate administrative action or to gain
a political objective.”6

5. It is humbly submitted that when a particular person is the object and target of a petition
styled as PIL, the Court has to be careful to see whether the attack in the guise of public
interest is really intended to unleash a private vendetta, personal grouse or some other mala
fide object.7 In the case of Ashok Kumar Pandey v. State of West Bengal, it was also held
that a petition lacking bona fides is an abuse of the process of the Court and has been filed

3
Merriam-webster dictionary (2018).
4
S.P. Gupta v. Union of India, AIR 1982 SC 149.
5
Kusum Lata v. Union of India, (2006) 6 SCC 180.
6
S.P. Gupta v. Union of India, AIR 1982 SC 149.
7
Gurpal Singh v. State of Punjab & Ors, (2005) 5 SCC 136.

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as a proxy litigation for the purpose of achieving a private interest. 8 The majority
judgment of the Supreme Court upholding the Central Vista redevelopment project has
urged for introspection of the tool of Public Interest Litigation lamenting how frivolous
PILs are eating into the Court’s time which can be utilised for hearing other cases.

6. In the Peoples Union for Democratic Rights v. Union of India the Supreme Court upheld
that it permits Public Interest Litigation or Social Interest Litigation at the instance of
“Public spirited citizens” for the enforcement of constitutional & legal rights of any person
or group of persons who because of their socially or economically disadvantaged position
are unable to approach the Court for relief. 9 Public interest litigation is a part of the process
of Participate-Justice and standing in civil litigation of that pattern must have liberal
reception at the judicial door steps.

7. It is humbly submitted that in the instant case, neither a legal wrong nor legal injury has
been caused to the petitioners and neither is such a legal wrong threatened by reason of
poverty, helplessness or disability or socially or economically disadvantaged position. It is
very clear based on the facts of the case that the petitioners are filing the said petitions with
a mala fide intent. The petitioners are going against the established law with an ill-intent.
Although in the case of PILs, the Locus is relaxed, the Court must look into the ‘locus’
before it entertains the petition.10

8. It is humbly submitted that this Hon’ble Court do “Complete Justice” as stated in Article
142 of the Constitution. Allowing this petition will be injustice to the moral and legal
standards of the society, and hence this PIL must not be maintained as such.

1.2. Whether there is any prima facie breach of Fundamental Rights established?

9. It is humbly submitted that a Public Interest Litigation can be filed under Article 32 of
Constitution for the enforcement of Fundamental Rights11 as guaranteed in Part III of the
Constitution of Aryavart. However, the PIL filed under Article 32 of the Constitution is not

8
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349.
9
Peoples Union for Democratic Rights v. Union of India, A.I.R. 1982 SC 1473.
10
R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91.
11
INDIA CONSTI., art. 32(1) when r/w art. 32(2) itself states that, art. 32 can only be invoked for enforcement
of rights as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III.

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maintainable as there has been no violation of Fundamental Rights. Article 32(1) of the
Constitution guarantees the right to move the Supreme Court by “appropriate proceedings”
for the enforcement of fundamental rights conferred by Part III of the Constitution.

10. It is humbly submitted that the Petitioners, i.e., Mrinal and Akram’s Marriage is not
registered and their offspring is not issued a Birth Certificate as per the procedure laid down
by law. This is Constitutionally valid and does not breach any Fundamental Rights of the
Petitioners, further proving that the PIL filed by them is not maintainable.

11. It is humbly concluded that the petitioners have no locus to file a PIL before this Hon’ble
Court on the grounds that the petition is mala fide and that there has been no infringement
of their Fundamental Rights. They have filed this petition for their personal interest, i.e.,
for the Issuance of Birth Certificate and Marriage Registration, which in no angle can be
considered as a PIL.

1.3. Whether the Petitioner has exhausted the Alternative Remedies?

12. It is humbly submitted that the Doctrine of exhaustion of Alternative Remedies directs
that a litigant must approach the forum that is nearest to him in the chain of judicial
structure. The extraordinary jurisdiction of the Writ Courts should not be obscured by cases
that can be settled by other forums, which was observed in Rashid v. I.T. Commission12.

13. It is humbly submitted that when an alternative and equally efficacious remedy is open to
litigant, he should be required to pursue that remedy and not invoke the special jurisdiction
of the Writ Courts which is observed in Union of India v. TR Verma13. Wherever the vires
of the statute are capable of being examined by the High Court, the Supreme Court has
usually redirected the petitioner to pursue that course of action, before petitioning under
Article 32 as observed in Louise Fernandes v. Union of India14.

14. It is humbly submitted that in Union of India v. Paul Manickam, this Court held that:

12
Rashid v. I.T. Commission, AIR 1954 SC 207.
13
Union of India v. TR Verma, AIR 1957 SC 882.
14
Louise Fernandes v. Union of India, (1998) 1 SCC 201.

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“Moreover, in order to invoke the jurisdiction under Article 32 of the Constitution to

approach this Court directly, it has to be shown by the petitioner as to why the High Court
has not been approached, could not be approached or futile to approach the High Court.
Unless satisfactory reasons are indicated in this regard, filing of petition in such matters
directly under Article 32 is to be discouraged” 15

1.4.Whether the Impleading Application filed by the All Indus Muslim Personal Law
Board is maintainable?

15. It is humbly submitted that the Impleading Application filed by the All Indus Muslim
Personal Law Board under Order 1 Rule 10 of the Code of Civil Procedure, 1908 is
maintainable before this Hon’ble Court. Order I Rule 10 of the Code of Civil Procedure,
1908 enables the Court to add or substitute:
i) Any person as a party at any stage of the proceedings;
ii) The person whose presence before the Court is necessary in order to enable the
Court effectively and completely adjudicate upon and settle all the questions
involved in the Suit.
This helps in curtailing the multiplicity of judgements before the Judiciary16.

16. It is humbly submitted that “Dominus litus” is the person to whom a suit belongs. This
also means master of a suit. This is the party who has real interest in the decision of a case.
It is this person who will be affected by the decision in a case. This person derives benefits
if the judgement is in his favour, or suffers the consequences of an adverse decision. If any
third party is likely to suffer any injustice, on account of the outcome of the suit, he is
entitled to get himself impleaded.

17. It is humbly submitted that the Bombay High Court in Ashok Babarao Patil v. The State
of Maharashtra & Ors. has observed that the Court has all powers to add a party as a
Defendant if necessary to decide a suit, even if the Plaintiff does not choose to implead the
said party. 17 In Punnakkal Suresh v. Saraswathi, the Kerala High Court has observed

15
Union of India v. Paul Manickam, AIR 2003 SC 4622.
16
Savitri Devi v. District Judge, (1999) 2 SCC 577.
17
Ashok Babarao Patil v. The State of Maharashtra & Ors., 022 LiveLaw (Bom) 392.

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that additional defendant can be added in the suit even if the petitioner thinks that the party
is not necessary.18

18. It is humbly submitted that in Razia Begum v. Sahebzadi Anwar Begum, legal interest is
interpreted to mean that the result of the suit affects the third party legally. A proper party
is one in whose absence an effective order can be made but whose presence is necessary
for complete, effective and proper adjudication on the questions involved in the
proceeding.19

19. It is humbly submitted that J.Jayalalitha v. C.Kuppusamy & Ors.20, All India
Manufacturers Organisation v. State Of Karnataka & Ors.21 are some example case
laws where impleading was done to PIL successfully. The counsel for respondent humbly
submits to this Hon’ble Court to consider these as effective Judicial Precedents in
maintaining this PIL.

20. It is most humbly submitted that in the instant case, the All Indus Muslim Personal Law
Board is representing the rights and personal laws of several Muslims of Aryavart. The
passing of the Uniform Civil Code would adversely affect their religious lifestyle. Hence,
their presence in this suit is the need of the hour.

ISSUE 02: Whether Uniform Civil Code is violative of one’s’ Fundamental rights and
other personal rights guaranteed under the Constitution of Aryavart and is it the States’s
interference in the realm of the personal laws of the subjects?

The counsels for the Respondents humbly submit before this Hon’ble Supreme Court that
Uniform Civil Code is violative of Fundamental Rights and other personal rights of
individuals, as guaranteed by our Constitution. This Code is not feasible to be applied to a
diverse country like Aryavart. It is not feasible for implementing Uniform Civil Coade in a
multi-cultural and a diverse country like Aryavart. Uniform Civil Code breaks the nation into
a hysterical jubilation and frantic wailing. Aryavart is a county of great religious, ethnic, and

18
Punnakkal Suresh v. Saraswathi, OP(C)No. 814 of 2016.
19
Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886. See also; D. Venkatasubramaniam v. MK Mohan
Krishnamachari, (2009) 10 SCC 488.
20
J.Jayalalitha v. C.Kuppusamy & Ors., SC CrL Appeal No. 1833 Of 2012.
21
All India Manufacturers Organisation v. State of Karnataka and Ors., 2005 (3) KarLJ 521.

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caste diversity. As a result of this cultural diversity, it is practically impossible to develop

uniform rules for personal issues such as marriage.

21. It is humbly submitted that Article 44 of the Constitution states that “The State shall
endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”.
However, Article 37 of the Constitution itself makes it clear the Directive Principles of
State Policy “shall not be enforceable by any Court”. The Supreme Court too, in its
landmark judgement of IC Golaknath v. State of Punjab ruled that the Parliament cannot
amend the Fundamental Rights to implement Directive Principles of State Policies. 22 This
indicates that although our Constitution itself believes that a Uniform Civil Code should be
implemented in some manner, it does not make this implementation mandatory.

22. It is humbly submitted that in Lily Thomas v. Union of India23, the Hon’ble Supreme Court
clarified the remarks made by it earlier in Sarla Mudgal v. Union of India24. The Court
now asserted that it has not issued any direction in that case for the enactment of a common
civil code25.

23. It is humbly submitted that in a public interest litigation Ahmedabad Women Action Group
v. Union of India, the Supreme Court was invited to declare certain aspects of Muslim
Personal Law as void, e.g., polygamy etc., as being void under Articles 14 and 15.26 But
the Court refused to do so saying that the issues raised were fit to be dealt with by the
Legislature and not by the Courts.

2.1 Whether the implementation of Uniform Civil Code goes against the Principles of
Secularism?

24. It is humbly submitted that the 42nd Constitutional Amendment Act, 1976 inserted the
word ‘Secularism’ in the Preamble. In S.R. Bommai v. Union of India, the Supreme Court
held Secularism as a basic feature of the Constitution. The main reason of contention

22
IC Golaknath v. State of Punjab AIR 1967 SC 1643.
23
Lily Thomas v. Union of India, AIR 2000 SC 1650 : (2000) 6 SCC 635.
24
Sarla Mudgal v. Union of India, AIR 1995 SC 1531 : (1995) 3 SCC 635.
25
In an earlier case, Maharshi Avadesh v. Union of India, (1994) Supp. (1) SCC 713, the Supreme Court had
specifically declined to issue a writ directing the respondents to consider the question of enacting a common civil
code for all citizens of India holding that the issue raised being a matter of policy, it was for the legislature to take
effective steps on.
26
Ahemedabad Women Action Group v. Union of India, AIR 1997 SC 3614 : (1997) 3 SCC 573.

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revolving around Uniform Civil Code has been Secularism and the freedom of religion
enumerated in the Constitution.27 The preamble of the Constitution states that Aryavart is
a ‘Secular Democratic Republic’ which means that there is no State religion, as also
observed by the Judiciary in Indira Nehru Gandhi v. Raj Narain28. A Secular State shall
not discriminate against anyone on the ground of religion. A State is only concerned with
the relation between man and man; it is not concerned with the relation of man with God.
It does not mean allowing all religions to be practiced; It means that religion should not
interfere with the mundane life of an individual. Secularism has a positive meaning that is
developing, understanding and respect towards different religions29. Although the words
‘Secular state’ are not expressly mentioned in the Constitution but there can be no doubt
that the Constitution-makers wanted to establish such a State30, and accordingly Articles
25-28 have been included in the Constitution. S.R. Bommai v. Union of India established
the fact that India was Secular since the formation of the Republic31. The Supreme Court
has ruled in Bal Patil and Anr. v. Union of lndia that the State has no religion on and the
State has to treat all religions and religious people equally and with equal respect without
in any manner interfering with their individual rights of religion, faith and worship.32 The
implementation of Uniform Civil Code will only destroy this Secular feature of our lex loci,
by not allowing the free practise and propagation of religion of one’s own choice.

2.2 Whether the implementation of Uniform Civil Code is an easy task in Aryavart?

25. It is humbly submitted that, Aryavart is a country of great cultural diversity and
demographic heterogeneity, it is practically impossible to develop uniform rules for
personal issues such as marriage. Additionally, convincing each community to abandon
centuries-old traditions in favour of a new law is difficult. Religious minorities view the
Uniform Civil Code as an infringement on their right to religious freedom. They fear that
their traditional religious practices will be supplanted by the majority religions’ rules. In
Sardar Taheruddin Syedna Sahib v. State of Bombay, the apex Court held that Articles

27
S.R. Bommai v. Union of India, 1994 SCALE (2) 37.
28
Indira Nehru Gandhi v. Raj Narain, 1975 AIR SC 2299.
29
Aruna Roy v. Union of India, AIR 2002 SC 3176.
30
St. Xavier College v. the State of Gujarat AIR 1974 SC 1389.
31
S.R. Bommai v. Union of India, 1994 SCALE (2) 37.
32
Bal Patil and Anr, v. Union of lndia, SC Appeal (civil) 4730 of 1999.

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25 and 26 serve to emphasise the Secular nature of the Indian democracy which the
founding fathers considered to be the very basis of the Constitution.33

26. It is humbly submitted that the State should abstain from interfering in personal matters of
Religions. The Constitution guarantees the right to freely profess and practise any religion.
Uniform Civil Code would constitute a violation of that right. There are already
controversies surrounding the beef ban, the saffronisation of school and college curricula,
and love jihad, to name a few. At this moment, the introduction of Uniform Civil Code
would exacerbate the problem by increasing Muslim insecurity and vulnerability to
fundamentalist and extremist ideologies. Many rural communities are more comfortable
deciding their disputes based on their community traditions and practices. Even women
from such communities prefer to go to the local Panchayats rather than formal Courts and
the reasons could range from them being too alien, distant, and expensive to the time that
the Courts take to deliver judgements. The right to follow personal laws is among the
fundamental rights und it will be tantamount to interference if the state decides to uniformly
legislate on matters of religion and culture.

27. It is humbly submitted that in a democracy governed by Rule of Law, gradual progressive
change and order should be brought about. Making law or amendment to a law is a slow
process and the legislature attempts to remedy where the need is felt most acute. It would,
therefore, be inexpedient and incorrect to think that all laws have to be made uniformly
applicable to all people in one go. The mischief or defect which is most acute can be
remedied by process of law at stages.

28. It is humbly submitted that exemptions under the Constitution must be honoured and
Uniform Civil Code could disturb the essence of the Constitution. Constitution itself has
given so many exemptions to so many people like the tribals, etc., and there are exemptions
even in Civil Procedure Code and Criminal Procedure Code. This is a strong abstract point
against the implementation of Uniform Civil Code.

29. It is humbly submitted that the main argument against a Uniform Civil Code is that it
violates the constitutional freedom to practise the religion of choice which allows religious
communities to follow their respective personal laws. For example, Article 25 gives every

33
Sardar Taheruddin Syedna Sahib v. State of Bombay, AIR 1962 SC 853.

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religious group the right to manage its own affairs34. Article 29 (1) gives them the right to
conserve their distinct culture35. Secondly, it is also argued that if codified civil laws and
criminal laws like the Code of Criminal procedure, 1963 and the Indian Penal Code, 1860
don't follow the principle of “one nation, one law” then how can this diktat be applied to
diverse personal laws of various communities. For example, the Indian Evidence Act of
1872, a federal act, was amended by the governments of West Bengal and Tamil Nadu.
With respect to criminal law, it is to be noted that different states have different legal ages
for drinking alcohol.

30. It is humbly submitted that the framers of the Constitution did not intend total uniformity.
Hence, Personal laws were placed in the Concurrent List., entry number 5 giving both the
Parliament and State Assemblies the power to legislate on personal issues. While the issue
of Uniform Civil Code seemed to have gone into the background, for the first time the Law
Commission of India constituted in the later part of 2016 issued a questionnaire consisting
of 16 questions to the general public on the desirability of such Code. Ultimately by Public
opinion, the Commission concluded that Uniform Civil Code is neither necessary nor
desirable at this stage.36

31. It is humbly submitted that it is alleged that a Uniform Civil Code will impose a Hinduised
code for all communities. For example, a Uniform Civil Code could ban Bigamy, which
will not affect the Hindus, but will affect Islam who practise Polygamy. This is evident in
a country with Hinduism as the majoritarian religion37. This would cause problem if the
contrary happens too, because the legislature is bound to choose one personal law to be
implemented across all the communities. Further, even in Hinduism there are many castes
which follow different customary practises. Implementing the Uniform Civil Code at this
stage would silent the voice of the minorities and cause equivalent problems.

2.3 Whether the State can interfere in the realm of Personal Laws?

32. It is humbly submitted that in the State of Bombay v. Narasu Appa Mali, the Supreme
Court concluded that personal law is not “law” or a “law in force” under Article 13.38

34
INDIA CONSTI, Part III, art. 25.
35
INDIA CONSTI, Part III, art. 29.
36
Law Commission of India, Consultation Paper on Reform of Family Law (Aug 2018) p. 7.
37
Para 1 of the Moot proposition.
38
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.

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Justice Gajendragadkar based his reasoning on a narrow interpretation of Article 13, stating
that the word ‘law’ in the article contemplates only a statutory law vis-à-vis one duly passed
by the Legislature. Since personal laws are not statutory laws, they are excluded from the
ambit of Article 13. Justice Gajendragadakar further stated that “But the expression "laws
in force" is in my opinion, used in Article 13(1) is not in that general sense. This expression
refers to what may compendiously be described as statutory laws”. Justice Chagla stated
that the Constitution drafters did not intend the personal laws to be subject to the rigours of
the Constitution as otherwise they could have ‘specifically provided for them’. This
proposition was affirmed by the Supreme Court in Krishna Singh v. Mathura Ahir39. In
other words, according to the Supreme Court, religious commandments dealing with issues
such as marriage and divorce could not be challenged for constitutional violations (until
and unless they were codified in Secular legislation).

33. It is humbly submitted that inspiration must be derived from the First Amendment of the
US Constitution which prohibits the legislature from making laws “respecting an
establishment of religion” or “that prohibits the free exercise of religion”.

34. It is humbly submitted that in N. Adithyan v. Travancore Devaswom Board & Ors. the
Supreme Court of India held that “Any custom or usage irrespective of even any proof of
their existence in pre-constitutional days cannot be countenanced as a source of law to
claim any rights when it is found to violate human rights, dignity, social equality and the
specific mandate of the Constitution and the law made by the Parliament. No usage which
is found to be pernicious and considered to be in derogation of the law of the land or
opposed to public policy or social decency can be accepted or upheld by the Courts in the
country”.40 In our instant case, the rights of LGBT community is curbed because the law
restricting them from getting married is violating human rights and social inequality and
the Muslim women are suffering because of the allowance of Polygamy by their personal
laws. Hence, Uniform Civil Code is a must in such a case.

35. It is humbly submitted that after the landmark SR Bommai case, the Supreme Court itself
has preferred to define Secularism in more religious terms, by placing reliance on the Indian

39
Krishna Singh v. Mathura Ahir, AIR 1980 SC 707.
40
N. Adithyan v. Travancore Devaswom Board & Ors. 2002 (8) SCC 106.

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religious traditions, as if religion and tradition itself lends legitimacy to the concept41. Thus,
the Court has under-stood religious values to create a space for Secularism in the Indian
polity.

36. It is humbly submitted that Jennings observes, “Parliament passes many laws which many
people do not want. But it never passes any law which any substantial section of the
population violently dislike”. In this instant case, Uniform Civil Code is a law which is
disliked by a substantial section of the population of Muslims represented collectively by
the All Indus Muslim Personal Law Board.

37. It is humbly submitted that the saga of events dates back to the journey that began for
securing the Uniform Civil Code with the Constituent Assembly Debates, the passing of
the Special Marriage Act, 1954, the laws being passed in line with the Shayara Bano case,
and then in 2003 when the then President of India Dr. A.P.J. Abdul Kalam supported the
need for a UCC and the subsequent judicial interpretations, thereby paving the way in an
affirmative fashion assenting to the need for a Uniform Civil Code and followed from
thereon by the Law Commission since 2016 for a dialogue for implementing the Uniform
Civil Code followed by the judicial pronouncements.

38. It is humbly submitted that Aryavart is a diverse country with multiple religious laws like
The Hindu Marriage Act, The Shariat Act, the Hindu Succession Act etc.
Implementing Uniform Civil Code would be a tough legislative task which will lead to the
repealing of these Statutes. Also, there are many contradictory laws in each of these statutes
like that of Monogamy42 and Polygamy43; harmonising all these is a complicated job, which
may lead to communal violence in the country as well.

39. It is humbly submitted that the Government of Aryavart, which is based out of a
majoritarian religion in the country44, wishes to implement the Uniform Civil Code except
for the LGBT+ community. The sexual relations of the LGBT people is an Unnatural
Offence which is an immoral and indecent display of affection in the public. More than

41
see M. Ismail Faruqqui v. Union of India (Ram Janmabhoomi case) AIR 1995 SC 605. & AS Narayana
Deekshitulu v. State of Andhra Pradesh, (1996) 2 SCC 498.
42
The Hindu Marriage Act, 1955 § 5(1): Parayankandiyal v. K. Devi & Others, 1996 SCC (4) 76.
43
The Muslim Personal Law Application (Shariat) Act, 1937 § 2(7).
44
Para 11 of the Moot proposition.

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70% of the citizens (i.e., the Hindus) have already been brought under the codified personal
law and there remains no valid grounds to keep Uniform Civil Code in a limbo anymore.
The question is why should the Muslims and other religions be allowed to have separate
religion-based personal laws in a Secular country, hence the implementation of Uniform
Civil Code is a need of the hour.

ISSUE 03: Whether the non-issuance of the Birth Certificate for the child born from a
LGBTQIA couple is violation of the Child’s right by the State?

It is humbly submitted before the Hon’ble Supreme Court that the non-issuance of the Birth
Certificate for a child born from a LGBTQIA couple is not a violation of the Child’s right by
the state.

40. It is humbly submitted that peer stigmatization has been identified as another area where
children raised in same-sex families are disadvantaged. For example, “children of gay
parents are vicarious victims of rampant homophobia and institutionalized heterosexism.”
They suffer all of the considerable economic, legal and social disadvantages imposed on
their parents, sometimes even more harshly.” In 2014, the largest study into the health and
wellbeing of children of same-sex parents ever conducted was undertaken in Australia. The
results established that “stigma related to parental sexual orientation is associated with a
negative impact on child mental and emotional wellbeing.” The study supported the
existing data, which suggest that “stigma and homophobia are related to problem behavior
and conduct problems in children with same-sex attracted parents.”

41. It is humbly submitted that in United States v. Windsor, the U.S. Supreme Court
recognized the significant social impact that discriminatory laws may have on children
when it observed that the Defense of Marriage Act, a federal law that defined the term
‘spouse’ to cover heterosexual marriages, “humiliate[d] tens of thousands of children now
being raised by same-sex couples. . . . [and] made it even more difficult for the children to
understand the integrity and closeness of their own family and its concord with other
families in their community and in their daily lives.”45

45
United States v. Windsor, 570 U.S. 744 (2013).

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42. It is humbly submitted that there are also significant legal and financial implications if all
parents are not represented on their children's birth certificates. It discusses the potential
financial harms children may suffer if their parents separate, as well as issues of inheritance
(from the non-birth mother or extended family) and workers’ compensation. The U.S.
Supreme Court in its Windsor opinion also highlighted the ways in which failure to
officially recognize parentage can cause significant financial detriment to families with
same-sex parents. Another potential problem arises if a child's birth mother dies and the
non-biological mother has not been recorded on the birth certificate. In these
circumstances, the child may be legally classified as an orphan, even though the other
mother is still alive.

43. Furthermore, the non-recognition of one parent in a two-parent family also “means that
children have only one parent who can legally give permission for treatment in a medical
emergency, enroll them at school, approve school excursions, and take them in or out of
the country.” Thus, failure to include both of a child’s same-sex parents on the child’s birth
certificate creates obstacles that range in severity from day-to-day annoyances to long-
lasting financial or potential medical harms.

44. It is humbly submitted that significant emotional implications also arise for children who
do not have birth certificates that accurately represent their parentage. Many children of
same-sex parents face discrimination: a 2005 study of seventy-eight ten-year-old children
of lesbian parents in the United States found that forty-three percent of them had
experienced homophobia.46

45. It is humbly submitted that the transcouples marriages are not recognized under any of the
Indian acts. In order to accommodate marriage of transgenders, the definition of wife will
have to be amended under all acts, presently the existing acts do not provide for the same.

46. It is most humbly submitted that in CrPC under Section 125(b) the term “wife” includes a
woman who has been divorced by, or has obtained a divorce from, her husband and has not
remarried. In the case of Chanmuniya v. Virendra Singh, Supreme Court has defined
‘Wife’ and it includes even those cases where a man and woman have been living together

46
Nanette Gartrell et al., The National Lesbian Family Study: 4. Interviews With the 10-Year-Old Children, 75
AM. J. Orthopsychiatry 518 (2005).

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as husband and wife for a reasonably long period of time. 47

47. Thus, it is humbly submitted that in the absence of an existing law, the Court cannot
interpret wife to mean a transgender which will further lead to more complications.

48. Further, it is recognized that having two mothers on a birth certificate can also lead to more
discrimination against a child by demonstrating that the child's family does not conform to
traditional ideas of the ‘nuclear family.’ On balance, though, recording the accurate
composition of a child's family on their birth certificate is worthwhile since it may lead to
same-sex families becoming more socially acceptable and over time reduce the stigma that
some children born into these families endure. Official documentation of children's families
on their birth certificates demonstrates that the government recognizes and respects a
plurality of family structures.

49. Similarly, research conducted in Australia found that among children with same-sex
parents, forty-four percent of children ages eight to twelve had experienced “teasing,
bullying or derogatory language in relation to their family,” while forty-five percent of
children ages thirteen to sixteen had experienced bullying which ranged “from verbal
abuse, teasing, and joking to physical and sexual violence.” Legally recognizing a child's
family on his or her birth certificate is one factor that could contribute to overcoming the
stigma that children in same-sex families continue to face.

ISSUE 04: Whether the Constitutional power of Court to frame laws has led to the
scenario where Legislature have become the Executive wing of the Judiciary?

It is most humbly contended that the Constitutional power of Court to frame laws has led to
the scenario where Legislature have become the executive wing of the Judiciary.

50. Legislature is the law-making body: The Respondents humbly submits that there is no
explicit mention of Judiciary (Supreme Courts, High Court, or State/District Courts) as a
‘State’ in Article 124 However, the organs of the Judiciary cannot make rules that are in

47
Chanmuniya v. Virendra Singh Kushwaha, (2011) 1 SCC 141.

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itself violative of the Fundamental Rights.48

51. In the Decision of Rupa Ashok Hurra v. Ashok Hurra, the Supreme Court reaffirmed that
Fundamental Rights cannot be violated by any judicial proceedings and also that Superior
Courts of Justice do not fall under the ambit of Article 12. It is also submitted that Article
13 of the Indian Constitution mentions, State to not make any law that violates the
provisions under Part III. Implementation of Uniform Civil Code violates Fundamental
Rights.49

52. It’s contended that the Supreme Court judgment cannot be treated as “a sort of legislation
by Parliament” overlooking the binding nature of the law declared by it, mandating under
Article 141, every Court subordinate to it to accept it. The law declared by the Supreme
Court binds Courts in India but it should always be remembered that the Court does not
enact.

53. It is humbly submitted that the Judiciary being the unelected body, does not enjoy the
“General Will” of the people. Judicial restraint is more apt for such an institution rather
than dictation legislation. Politicians remain ‘accountable’ to the people in at least some
sense, because they depend upon them in order to continue in office after five years against
Constitutional Mandate and Lack of Expertise.

54. It is humbly submitted that Judicial Review is a basic structure of the Constitution however
enacting legislation is not. The Constitution prohibits the Court from enforcing a Directive
Principle of State Policy. Courts can look into the validity of the law, but not necessarily
make a law. Judiciary lacks both time and resources to enact legislation. Sometimes
practical difficulties of such enactments are not known to the Courts.

55. Judicial Restraint: The Counsels for Respondents humbly submits that There is no dispute
on the fact that the Judiciary should also self-regulate itself. It should also put some restraints
on its powers, whenever it is required. The Supreme Court in Divisional Manager, Aravali
Golf Course v. Chander Hass has observed that: "Judges must know their limits and must
not try to run the Government. They must have modesty and humility, and not behave like

48
INDIA CONSTI. art. 124.
49
Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771.

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Emperors. There is broad separation of powers under the Constitution and each organ of the
State-the legislature, the executive and the Judiciary must have respect for the others and
must not encroach into each other's domains."50

56. It is humbly submitted that a significant aspect of the relationship between the government
and the people is the guaranteeing of certain Fundamental Rights to the people. Modern
Constitutions lay a good deal of emphasis on people’s Fundamental Rights. The underlying
idea is that there are certain basic rights which are inherent in a human being and which no
government should seek to take away either by legislation or by executive action. The
Judiciary is endowed with the function of protecting these rights and acting as the guardian
thereof. If the legislature passes any law or the executive takes an action, so as to infringe
any of the Fundamental Rights, then the Courts may declare such a law or action as
unconstitutional. Some of these basic rights are: freedom of the person, freedom of speech,
right to equality, freedom of conscience and religion, etc.

57. It is most humbly submitted that the Court has cautioned: “It must be remembered that the
wider the amplitude of its power under Article 142, the greater is the need of care for this
Court to see that the power is used with restraint.”

58. Thus, the plenitude of power conferred on the Supreme Court under Article 142 needs to
be used with care as not to interfere with the performance of their statutory duties and
functions by other authorities in accordance with law. The Apex Court has ruled that though
its power under Art. 142 is broad, it cannot be exercised against a Fundamental Right. In
Prem Chand, the Court had suggested that its power under Art. 142(1) cannot be exercised
against a definite statutory provision. In A.R. Antulay v. R.S.Nayak, the Supreme Court
has observed in relation to Art. 142: however wide and plenary the language of the article,
the directions given by the Court should not be inconsistent with, repugnant to, or in
violation of the specific provisions of any statute.”51 But, then, there are a number of cases,
where the Court has expressed the view that the scope of Art.142, which is a constitutional
provision, cannot be cut down by a statutory provision.

50
Aravali Golf Course v. Chander Hass, (2008) 1 SCC 683.
51
A.R Antulay v. R.S. Nayak [1984] 2 S.C.R. 495 at 557.

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59. It is humbly submitted that on May 11, 2016, the Hon'ble Supreme Court of India in Swaraj
Abhiyan-(1) v. Union of India & Ors., directed the Ministry of Agriculture in the Union
of India to update and revise the Drought Management Manual. The apex Court also
directed the Union government to set up a National Disaster Mitigation Fund within three
months. Nevertheless, Finance Minister, Arun Jaitley expressed the difficulty to create a
third fund outside the National Disaster Response Fund and the State Disaster Response
Fund, keeping in view that the Appropriation Bill is being passed. He also raised concern
about India's budget-making being subject to judicial review.52

60. It is not Judicial Activism, it is Judicial Intervention which leads to Arbitrariness. It's
humbly contended that the Supreme Court's rulings in Supreme Court Advocates- on-
Record-Association v. Union of India, National Eligibility-cum-Entrance Test (NEET)
i.e., single test for admissions in medical courses, reformation in Board for the Control of
Cricket in India (BCCI), filling up the judges’ post, etc, have been considered as the judicial
intervention by the government.53

61. It is humbly contended that each organ of our democracy must function within its own
sphere and must not take over what is assigned to the others. Judicial activism must also
function within the limits of the judicial process because the Courts are the only forum for
those wronged by administrative excesses and executive arbitrariness.

62. It is humbly submitted that the Approaches to be adopted for abstaining from Judicial
Overreach. Judicial Activism and Judicial overreach has a thin line between them, which
should be maintained by all three organs of the government. Any form of conflict among
all these organs results in the failure mechanism of the government both at the center and
the state. Hence, the few steps that can be taken for abstaining from Judicial overreach are:

63. It is most humbly submitted that the doctrine of the separation of powers between the
legislature, executive, and Judiciary must be followed, and the organs must not encroach
within each other’s functionalities and mechanisms and must exercise their functions with
full transparency and accountability.

52
Swaraj Abhiyan-(1) v. Union of India & Ors., Writ Petition (C) No. 857 of 2015.
53
Supreme Court Advocates- on-Record-Association v. Union of India, (1993) 4 SCC 441.

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64. It is humbly submitted that The Constitution of India has accorded the powers to the organs
individually. It has drawn a Lakshman Rekha among all the three organs of the government
with the view of maintaining independence in their respective functioning and prevent not
just judicial overreach but any kind of encroachment in other domains. Article 50 and
Article 361(vi) of the Constitution have ensured and separated the Judiciary from the
executive on the basis of the working and the functioning of the executive branch.

65. It is submitted that the three wings of the government must abstain from usurping the
powers into each other’s domain. The Courts have been barred from exercising their writ
of mandamus for issuing any kind of orders to the legislature and the executive.

66. It is humbly submitted that under Art. 138(2), the Supreme Court shall have such
jurisdiction and powers with respect to any matter as the Government of India and any State
Government may by special agreement confer, if Parliament by law provides for the
exercise of such jurisdiction and powers by the Supreme Court.

67. It is humbly submitted that under Art. 139, Parliament may by law confer on the Supreme
Court power to issue directions, orders or writs, including writs in the nature of habeas
corpus, mandamus. prohibition, quo warrants and certiorari, or any of them, for any
purposes other than those mentioned in Art. 32(2). Under Art. 32(2), the Supreme Court
has power to issue these writs for purpose of enforcement of Fundamental Rights. Under
Art. 139, power to issue writs may be conferred on the Supreme Court for purposes other
than enforcement of Fundamental Rights.

68. It is humbly submitted that under Art. 140, Parliament may by law make provisions for
conferring upon the Supreme Court such supplemental powers not inconsistent with any
provision of the Constitution as may appear to be necessary or desirable for the purpose of
enabling the Court more effectively to exercise the jurisdiction conferred on the Court by
or under the Constitution.

69. Additional Jurisdiction Of Parliament: The Supreme Court has ruled in In re. Special
Courts Bill, 1973, that as regards conferring additional jurisdiction on the Supreme Court

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provisions from Arts. 124 to 147 of the Constitution are exhaustive and no more jurisdiction
can be conferred on the Supreme Court outside those provisions. Parliament can con fer
additional jurisdiction on the Supreme Court while exercising its legislative power under
Arts. 246(1) and (2). Thus, Parliament can confer jurisdiction on the Supreme Court beyond
what Arts.133(3), 134(2), 138(1), 138(2), 139 and 140 provide. These provisions are to be
read in harmony and conjunction with, and not in derogation of other constitutional
provisions.

70. Thus, the Court has ruled: “The Parliament, therefore, has the competence to pass laws in
respect of matters enumerated in Lists I and III notwithstanding the fact that by such laws,
the jurisdiction of Supreme Court is enlarged in a manner not contemplated by or beyond
what is contemplated by the articles in Chapter IV, Part V”.
For example, preventive detention falls under entry 3 in List III. Parliament is competent
while legislating on that topic under Art. 246(2) to provide under Art. 246(1) read with
entry 77, List I, that an appeal shall lie to the Supreme Court from an order of detention
passed under a preventive detention law.

71. It is most humbly submitted that the Article 50 of the Constitution contains The Directive
Principle envisages separation of Judiciary from executive in the public Services of the
State. While there may be no strict water tight separation at least as between the Legislature
and the executive, the Judiciary is separated from Executive in any Public services

72. Hence Court cannot issue guideline or as an Activist Judiciary is not a competent authority
to Issue order to legislature by make it push and compel in Law making process as
Independence of Judiciary should be protected by the sole duty of the State enshrined as
Doctrine of Separation of power in Article 50.

73. Hence it is most humbly contended that Uniform civil code Implementation process
insolemnly policy matter of state and the process is ongoing in Parliament as Pending Bill.
If Court overreach its jurisdiction, It also violates Parliamentary privileges.

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PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, the
Counsel for Petitioner humbly prays that this Hon’ble Court may kindly:

1. Dismiss the petitions filed, with heavy costs.

And pass an order, direction, or relief that it may deem fit in the interests of Justice, Equity
and Good Conscience.

The Parties Shall Accept The Judgment Of The Court As Final And Binding For Them And
Shall Execute In It Entirety And In Good Faith.

For this act of kindness, the petitioner shall duly bound forever pray.

Place: Republic of Aryavart Most respectfully submitted,

Date: 12th October 2023 NSL06

[COUNSELS FOR THE RESPONDENTS]

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