2nd DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2023

NSL07

2nd DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF Aryavart

CASE NO: _______________ OF 2023

IN THE MATTER OF:

MRINAL AND AKRAM ..…………………………… PETITIONER

Vs.

UNION OF ARYAVART……………………………. RESPONDENT

NGO – SAMRIDHI ……………………..……………..PETITIONER

Vs.

UNION OF ARYAVART…………………………….. RESPONDENT

(Taken together)

FOR THE KIND ATTENTION OF THE CHIEF JUSTICE AND HON’BLE

JUSTICES OF THE SUPREME COURT OF Aryavart

MEMORIAL ON BEHALF OF THE

RESPONDENT

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TABLE OF CONTENT

➢ TABLE OF CONTENT …………………………………………………………… 1

➢ INDEX OF ABBREVIATION ……………………………………………………. 2
➢ INDEX OF AUTHORITIES …………………………………………………… 3,4
• Table of cases …………………………………………………………………… 3
• List of Resources used …………………………………………………………. 4
➢ STATEMENT OF JURISDICTION ……………………………………………. 5, 6
➢ STATEMENT OF FACTS ……………………………………………………….. 7
➢ ISSUES RAISED …………………………………………………………………… 8

• Whether the PIL is maintainable in the Supreme court of Aryavart or not and
is it feasible to implement Uniform Civil Code in a Country like Aryavart?

• Whether UCC 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?

• 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?

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

➢ STATEMENT OF ARGUMENTS …………………………………………. 9-12

➢ ARGUMENTS ADVANCED .........................................................................13-23

➢ PRAYER ...............................................................................................................24

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INDEX OF ABBREVIATION

ABBREVIATION EXPANSION
& And
AIR All India Reporter
Art. Article
CRPC Code of Criminal Proceeding, 1973
DPSP Directive principles of state policy
ed. Edition
Hon’ble Honourable
HC High Court
IPC Indian Penal Code, 1860
LGBTQIA Lesbian, gay, bisexual, transgender, queer/questioning,
intersexual, asexual
PIL Public Interest Litigation
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec Section
SMA Special Marriage Act
UCC Uniform Civil Code
UOI Union Of India
vs Versus

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INDEX OF AUTHORITIES
TABLE OF CASES

➢ Githa Hariharan v. Reserve Bank of India, AIR 1999 2 SCC 228

➢ John Vallamattom v Union of India, (2003) 6 SCC 611
➢ St. Xaviers College Society & ANR Vs. State of Gujarat & ANR, AIR(SC) 1389
➢ Sarla Mudgal v. Union of India, 1995 AIR 1531
➢ Indian Young Lawyers Association vs The State of Kerala, WRIT PETITION
(CIVIL) NO. 373 OF 2006. (2019) 11 SCC 1
➢ Navtej Singh Johar vs. Union of India, AIR 2018 SC 4321
➢ Visakha v State of Rajasthan, AIR 1997 SC 3011
➢ Nipun Saxena v Union of India, (2009) 2 SCC 703
➢ Rambabu Singh v Sunil Arora, (2020) 3 SCC 733
➢ Assam Sanmilita Mahasang v Union of India, WRIT PETITION (CIVIL) NO. 274
OF 2009

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LIST OF RESOURCES USED

BOOKS
➢ NARENDER KUMAR, CONSTITUTIONAL LAW OF INDIA (ed. 2022)
➢ DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA (10th Edition)
➢ V.N. SHUKLA’S CONSTITUTION OF INDIA (Edition 11th).
➢ M P JAIN INDIAN CONSTITUTIONAL LAW (Edition 8th).
➢ DURGA DAS BASU, INTRODUCTION TO CONSTITUTION OF INDIA (23rd
Edition)
➢ MA QURESHI, MUSLIM LAW (Central Law Publication, 6th ed., 2020)
WEBSITES
➢ MANUPATRA, https://www.manupatrafast.in/
➢ IPLEADERS BLOG, https://blog.ipleaders.in/
➢ SUPREME COURT OF INDIA, https://main.sci.gov.in/judgments
➢ LIVE LAW, https://www.livelaw.in/
➢ INDIAN KANOON, https://indiankanoon.org/

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STATEMENT OF JURISDICTION

This writ petition is filed under Article 32 of the Constitution of Aryavart, which guarantees
the right to move the Supreme Court for the enforcement of fundamental rights. The
respondent has appeared in response to the grievance that has been initiated through article 32
of the Indian constitution.

1) Article 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 clauses (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.

2) Article 25: Freedom of conscience and free profession, practice, and propagation of
religion.

(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise
and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law—

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(a) Regulating or restricting any economic, financial, political or other secular activity
which may be associated with religious practice;

(b) Providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus

3) Article 44: The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.

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STATEMENT OF FACTS

1. Aryavart is a Sovereign Country in Asiana consisting of 28 States and 8 Union

territories and is by and large conservative country. Around 140 crore Hindus and
Muslims live in Aryavart. Mrinal and Akram have been dating since 2010, but
because of the social structure of the nation, they have experienced stigma and
discrimination. The Hon’ble Supreme Court decriminalised homosexuality in 2018,
yet stigma and prejudice against the LGBTQ+ community still exist.
2. Due to the absence of a Uniform Civil Code, the couple encountered difficulties in
becoming legally married and making their relationship public. They submitted a writ
petition under article 32 of the Aryavart constitution asking for the adoption of a
uniform civil code that recognises both same-sex marriage and interreligious marriage
and accords equal rights to everyone regardless of sex or faith.
3. A non-profit organisation named Samridhi has been promoting the adoption of a
Uniform Civil Code while also working for the welfare of Muslim women
nationwide. The All-Indus Muslim Personal Law Board is against the Uniform Civil
Code’s introduction because they feel it breaches their personal rights and the
Aryavart’s secular framework.
4. The administration of Aryavart is in favour of the creation of a uniform civil code, but
it is opposed to one that recognises LGBTQIA communities because such unions are
not sanctioned by any faith, according to the government. The Trans-Couple rejects
the All-Indus Muslim Personal Law Board’s impleading petition because they believe
they are not required parties to the proceedings.
5. These instances have received a lot of media coverage and have generated a lot of
discussion, with opposing and defending viewpoints on both sides.

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ISSUES RAISED

• ISSUE 1

Whether the PIL is maintainable in the Supreme court of Aryavart or not and is it
feasible to implement Uniform Civil Code in a Country like Aryavart?

• ISSUE 2

Whether UCC 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?

• ISSUE 3

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 4

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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STATEMENT OF ARGUMENTS

• ISSUE 1 : Whether the PIL is maintainable in the Supreme court of Aryavart or not
and is it feasible to implement Uniform Civil Code in a Country like Aryavart?

1. It is humbly submitted that the PIL before this Hon’ble court is not maintainable. The
part IV of the constitution is made non justiciable therefore it cannot be challenged in
any court of law nor can ask the state for implementation of the same and UCC being
one of the directive principles of the state is non justiciable. Hence any court cannot
issue any direction or mandate the state.

2. Implantation of UCC in a country like Aryavart is still not feasible. UCC is being
rejected by large sections of community therefore a uniform code may not be a
fruitful way. Due to heterogeneous nature of society multiple sources of personal laws
exist therefore a wide range of consultation with various stakeholders and detailed
study of personal law is required.

3. Since various communities exist in Aryavart there are various customary practices
that are followed it is not possible for a UCC to reflect all those customary practices.
Since UCC will be passed by a legislature whose ideology is based upon Hinduism,
on Muslim, Christian, Buddhist, Sikh, various tribal etc, it is to be expected that there
would be keen resistance to such forceful change.

4. Muslims and other communities constitute minorities in Aryavart. It seems such

communities will see a force compulsion to accept a uniform code by government
whose ideology is based out of Hinduism.

5. As far as gender equality is concerned, personal has seen modernisation through

various judicial pronouncements which were accepted by the larger community. It is
evident that absence of UCC has not mean that personal laws are not being reformed
at all.

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• ISSUE 2 : Whether UCC 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?

1. It is humbly submitted before the Hon’ble Court that implementation of UCC is

violative of the fundamental right and other personal rights of the citizens of Aryavart
as mentioned in the Constitution of Aryavart. It is specifically violative of the Right to
Freedom of Religion preserved and protected under Article 25 of the Constitution of
Aryavart. Aryavart is a home to multitude of religion and belief system. Each of these
religions has their own set of personal laws and practices

2. In any democratic society, the protection of freedom of religion is the fundamental

principle. Bringing in play a UCC, would promote uniformity and equality and treat
each and every citizen even-handedly, but it would infringe upon the religious and
cultural rights of various communities. It would also lead to conflicts and challenges
related to issues such as marriage, divorce, inheritance and succession which are
deeply intertwined with religious and cultural practices.

3. Aryavart is a diverse and religiously multi-ethnic country with rich tapestry of beliefs
and practices. Implementing UCC that seek to standardize personal laws can clash
with deeply held religious beliefs and customs. Any attempt to alters or replace these
traditions can provoke strong resistance and opposition. People tend to resist changes
to deeply ingrained practices and traditions, especially when they are associated with
religion and culture

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• ISSUE 3 : 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?

1. It is humbly submitted before the Hon’ble Court that Birth Certificates might have a
lot of importance in the current society but its non-issuance can never amount to the
violation of the fundamental rights of the child born out of a LGBTQIA couple.
Firstly, to avail a Birth Certificate, the child must be legitimate. In the said case, the
marriage is a matter of The Special Marriage Act, 1954 as both of them belong to two
different religions (Hinduism and Islam) and registration of marriage is the only way
of making the marriage valid which was not performed. Thus, if the marriage is not
valid, the child is also illegitimate.

2. In order to obtain a Birth Certificate, along with the said and mentioned eligibility
criteria, there is a requirement of mentioning the name of the “Mother” as per the
recent order of the Supreme Court. But in case of Trans-couple, the individual who is
giving birth to the child is identifying herself as the “Father”. Therefore, this is one of
the major issues that is to be answered.

3. While some countries require birth certificates for school enrolment, others have more
flexible policies. These flexible policies demonstrate that a child’s access to education
is not solely contingent on the presence of a birth certificate. Alternative
documentation or affidavits can sometimes suffice. Denying admission to school to a
child without a birth certificate may violate the fundamental right to education under
Article 21A. Under the Right to Education Act, 2009, for admission to elementary
education, a child’s age is determined on the basis of their birth certificate or any
other document that may be prescribed. The Act also provides that no child should be
denied admission on the grounds of lack of age proof.

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• ISSUE 4 : Whether the Constitutional power of Court to frame laws has led to the
scenario where Legislature have become the Executive wing of the Judiciary?

1. It is humbly submitted that there needs to be separation of powers amongst different

organs of the government for its smooth functioning. This is to ensure that there is an
equitable distribution of powers amongst the legislature, executive bodies, and the
judiciary. In this scenario it is complete infringement of the doctrine.

2. In the concerned case the trans couple could not register their marriage because the
law does not permit, for that reason just interpretation of statues may not fulfil the
purpose. The issue here is of much graver nature and needs a whole new dimension.

3. Social morality and constitutional morality is worth mentioning in this context. It is to

be understood that marriage is a socio-centric institutions and the society can
participate too. In Aryavart marriage have a social character rather than just a mere
transaction between two consenting individuals. Therefore, every time constitutional
morality cannot prevail over public morality.

4. More importantly this arena belongs to the legislature, only parliament can make laws
relating to it. Hence this can be another example where judiciary infringe the doctrine.

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ARGUMENTS ADVANCED

ISSUE 1 : Whether the PIL is maintainable in the Supreme court of Aryavart or not and
is it feasible to implement Uniform Civil Code in a Country like Aryavart?
1. It is humbly submitted that the PIL filed by the NGO is not maintainable in this
Hon’ble court. For justification of the same the council states the following reasons:
a. In Part IV of the Constitution, the Directive Principles of State Policy
(DPSP) figure from Articles 36 to 51. And Article 44 talks about a Uniform
Civil Code. According to this, a uniform civil law should be made for all the
citizens of the country. Here it is important to know that the Directive
Principles are ideal principles – while governments and citizens can be
encouraged to follow them, they are not mandatory.
b. Also, Directive Principles are not "enforceable" in a court of law as
mentioned in Article 37 of the Constitution. For an ideal state of political
governance, it is believed that if state policy followed by Directive
Principles, then public welfare, integration among individuals and social
harmony will increase.
c. Thereby any court cannot issue any direction nor set any mandate in this
matter as it concerns policy which can only be dealt with by elected
representatives. It is for the legislature to enact a law.
2. For understanding the feasibility of UCC in a country like Aryavart it is important
to trace the history of UCC. Dr B R Ambedkar on the 4th of November 1948
presented the Draft Constitution to the Constituent Assembly for deliberation1. The
uniform civil code provision found its place in the Directive Principles of State
Policy as Draft Article 35. The text of Article 35 went like this “The State shall
endeavour to secure for the citizens a uniform civil code throughout the territory of
India’’. Thereby this provision was taken for discussion in the assembly. Majority
of the members of felt that the uniform civil code provision was best incorporated
as a non-justiciable right. Not all members agreed with this decision. On 23rd of
November 1948 the provision was up for discussion. The Muslim members

1
Constitutional History, UCC-Part-1-Constitutional-History.pdf (clpr.org.in) last visited on 12 September 2023

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proposed amendments which aimed to do 2 things: (I) introduce provisos to Draft

Article 35 such that personal laws are kept out of its scope and (II) operationalize
the uniform civil code only with the prior assent of the community in question.2
3. Members including Ismail Sahab, Nazzirudin Ahmad and Sahib Bahadur put forth
their arguments stating that UCC provision violates the fundamental right of
freedom of religion and that UCC would create disharmony within the Muslim
community. No interference must take place in the personal law without the
approval of religious communities, they added. Sahib Bahadur further stated, “Who
are the members of this Constituent Assembly who are contemplating to interfere
with the religious rights and practices?”. However, these are the contentions and
dissenting arguments in the constituent assembly debate. The idea of implementing
UCC in a country like Aryavart is indeed a tough job and can face challenges as
summed up3:
A. Heterogeneity of Aryavart

Aryavart is a heterogeneous in many ways, it is home to several different cultures,

languages and overall, a diverse country. keeping in mind the diversity of Aryavart
UCC would not be an effective means to secure equal rights and gender justice. The
effects of UCC would be felt by different communities and may not be in positive
way. By way of example, a Muslim woman, who are a part of community that
practices polygamy and whose rights are protected under Muslim personal law, but
as second, third or fourth wife under UCC they will find themselves “illegal” under
UCC and no longer entitled to the protections that they currently have as wife being
entitled to maintenance.

B. Voices of majorities over minorities

Since various communities exist in Aryavart there are various customary practices
that are followed it is not possible for a UCC to reflect all those customary practices.
Since UCC will be passed by a legislature whose ideology is based upon Hinduism,
on Muslim, Christian, Buddhist, Sikh, various tribal etc, it is to be expected that
there would be keen resistance to such forceful change. Even within Hinduism the
community is not entirely homogenous, and thus, only voices of the majority Hindu

2
Constitutional Assembly Debates Volume VII, NN-7-17.PM6 (eparlib.nic.in) last visited on 13 September 2023
3
UNIFORM CIVIL CODE: PROBLEMS AND PROSPECTS, available at: 144516425.pdf (core.ac.uk)

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community would likely be reflected at the expense of others. Thus, this issue of
representation, which is true for any democracy, would silence the many minority
voices, and be detrimental to minority interests.

C. May trigger identity tensions.

Muslims and other communities constitute minorities in Aryavart. It seems such
communities will see a force compulsion to accept a uniform code by
government whose ideology is based out of Hinduism. Such force
implementation instead of protecting the rights rather limit them as communities
hold on to their customs even more closely.
4. As far as concept of gender justice, equality is concerned personal law has seen
modernisation in past due to judicial activism and initiatives by various
communities. The same can be traced in Githa Hariharan v. Reserve Bank of India4,
struck down the provision of Hindu Minority and Guardianship Act, 1956, which
holds the father to be born the natural guardian of a Hindu child as unconstitutional.
The court held that the father cannot have a preferential right over mother in the
matter of guardianship. It can be observed from the above case that absence of UCC
has not mean that personal laws are not being reformed at all.
5. In stark contrast UCC is being rejected by large sections of community.
Therefore, the change may not be accepted in a fruitful way. This can be shown
by the reluctance of communities on “forced” changes versus the “acceptance”
of the change that comes from within the communities. Instead of forcing them
to adopt “uniform law” the state policy can be focussed more on encouraging
and engaging the communities.5
6. It is believed that any measure which impacts the right of an individual should
be subjected to a transparent public consultation. Due to the heterogeneous
nature of society multiple sources of personal laws exist. Therefore, a wide
discussion with the experts and diverse stakeholders should be consulted as well
as public consultation which may encourage different groups of communities to
come up with their ideas and thus it can be helpful for the state to understand
the scenario from various dimensions.

4
Githa Hariharan v. Reserve Bank of India, AIR 1999 2 SCC 228
5
CURRENT SCENARIO OF UNIFORM CIVIL CODE WITHIN THE INDIAN MANDATE, Current-Scenario-of-Uniform-
Civil-Code-Within-the-Indian-Mandate.pdf (lexforti.com) last visited on 18 September 2023

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ISSUE 2: Whether UCC is violative of one’s Fundamental Rights and other personal
rights guaranteed under the Constitution of Aryavart and is it the State’s interference in
the realm of personal laws of the subjects?

1. It is humbly submitted before the Hon’ble Court that implementation of UCC is

violative of the fundamental right and other personal rights of the citizens of Aryavart
as mentioned in the Constitution of Aryavart. It is specifically violative of the Right to
Freedom of Religion preserved and protected under Article 25 of the Constitution of
Aryavart. Had it not been so, it would not have been included in the Directive Principles
of State Policies (DPSP, Part IV of the Constitution of Aryavart). Aryavart being a
Secular country, it would be a strong violation of the Freedom of Religion if a Uniform
Civil Code is implemented.

2. Aryavart is a home to multitude of religion and belief system. Each of these religions
has their own set of personal laws and practices. The Constitution of Aryavart grants
religious communities their right to manage their own religious and charitable
institutions. The cultures of Aryavart are deeply intertwined with religion and personal
laws are often seen as a reflection of cultural values. Thus, implementing UCC would
require reconciling these diverse traditions and cultural nuances, which is a complex
and sensitive task. In John Vallamattom v Union of India6 , the Supreme court held that
there is no ground to restrict a person from freely professing, practising and propagating
their religion.

3. In any democratic society, the protection of freedom of religion is the fundamental

principle. Bringing in play a UCC, would promote uniformity and equality and treat
each and every citizen even-handedly, but it would infringe upon the religious and
cultural rights of various communities. It would also lead to conflicts and challenges
related to issues such as marriage, divorce, inheritance and succession which are deeply
intertwined with religious and cultural practices. In the case of St. Xavier’s College
Society v. State of Gujrat7 the Supreme court recognized the importance of religious
and linguistics minority institutions maintaining their autonomy. This underscores the
significance of protecting religious freedom, even when considering the

6
John Vallamattom v Union of India, Writ Petition (Civil) 242 of 1997
7
St. Xaviers College Society & ANR Vs. State of Gujarat & ANR [1974] INSC 106

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implementation of a Uniform Civil Code. While the UCC aims to establish uniformity
and equality in personal laws, it should not come at the cost of infringing upon the
religious and cultural rights of various communities. The potential conflicts and
challenges that may arise in implementing a UCC should be carefully considered to
ensure that religious freedom is preserved. This case serves as a reminder that in a
diverse and pluralistic society like Aryavart, the protection of religious freedom is
essential to uphold the principles of Justice, Equality and respect for individual beliefs
and practices.

4. The idea of a UCC may aim for uniformity and equality in personal laws, it must
navigate the intricate web of religious diversity, deeply held beliefs, legal nuances, and
socio-political sensitivities to be effectively implemented. The Sarla Mudgal v. Union
of India8 case serves as an illustration of the complexities and challenges associated
with implementing a Uniform Civil Code in a diverse and pluralistic society like India.
The said case demonstrated how legal loopholes could be exploited to bypass existing
personal laws. In this instance, the individual converted to Islam to contract a second
marriage without divorcing his first wife. This kind of situation poses significant
challenges in drafting and enforcing a UCC that addresses potential loopholes and
ambiguities effectively. The case highlighted the socio-political complexities
surrounding the adoption of a UCC, as different political and religious groups may have
conflicting views and interest.

5. Aryavart is a diverse and religiously multi-ethnic country with rich tapestry of beliefs
and practices. Implementing UCC that seek to standardize personal laws can clash with
deeply held religious beliefs and customs. Any attempt to alters or replace these
traditions can provoke strong resistance and opposition. People tend to resist changes
to deeply ingrained practices and traditions, especially when they are associated with
religion and culture. A UCC that aims to standardize personal laws across all
communities may face resistance from those who perceive it as a threat to their way of
life. In the Sabarimala Temple Case9, the Supreme Court ruled that women of all ages
should be allowed to enter and worship at the Sabarimala temple overturning a

8
Sarla Mudgal v. Union of India, 1995 AIR 1531
9
Indian Young Lawyers Association vs The State of Kerala, WRIT PETITION (CIVIL) NO. 373 OF 2006.
(2019) 11 SCC 1

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longstanding practice. Protests, violence and social unrest erupted as various groups
expressed their disagreement with the Court’s decision. This case highlights how
religious practices and customs can be deeply entrenched in society, and any attempt to
change or standardize them, as a UCC might seek to do, can lead to fierce resistance
and social unrest.

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ISSUE 3: Whether the non-issuance of Birth Certificate for the child born from a
LGBTQIA couple is violation of the child’s rights or not?
1. It is humbly submitted before the Hon’ble Court that Birth Certificates might have a lot
of importance in the current society, but its non-issuance can never amount to the
violation of the fundamental rights of the child born out of a LGBTQIA couple. In
today’s world, there still exists people who are unaware of this concept eventually does
not have a birth certificate, does that tantamount to the violation of rights of all of those
children?

2. Firstly, to avail a Birth Certificate, the child must be legitimate. According to the legal
definition, “An illegitimate child is one that is not born from lawful wedlock meaning
that the parents are not validly married to one another, be it customary, statutory, or
Islamic.”10 Therefore, the first and foremost requirement of calling a child legitimate is
a lawful marriage. In the said case, the marriage between Mrinal and Akram is not at
all valid as it should a registered marriage as it would fall under the ambit of The Special
Marriage Act, 1954 as both belong to two different religions. Also, the “Trans-
marriage” is still considered an illegal activity in Aryavart and is forbidden by law.
Thus, non-issuance of Birth Certificate to a child who is not legitimate is not a violation
of any kind of rights.

3. In order to obtain a Birth Certificate, along with the said and mentioned eligibility
criteria, there is a requirement of mentioning the name of the “Mother” as per the recent
order of the Supreme Court11. The question arises here that who the mother is and who
is the father in case of a LGBTQIA couple. In case of a normal couple, the individual
who is giving birth to the child is considered as the “Mother” and vice versa. But in
case of Trans-couple, the individual who is giving birth to the child is identifying herself
as the “Father”. Therefore, this is one of the major issues that is to be answered.

4. It’s worth considering that birth certificates are a relatively recent development in many
parts of the world. Generations of individuals grew up without them, yet they still led
fulfilling lives and contributed to society. This historical perspective raises questions

10
Legitimacy and legitimation laws in conflict of laws (2020) https://blog.ipleaders.in/legitimacy-legitimation-
laws-conflict-laws/ (Last visited on September 24, 2023)
11
Dad’s name not must on birth certificates: SC (2015) https://timesofindia.indiatimes.com/india/dads-name-
not-must-on-birth-certificates-sc/articleshow/47966042.cms (Last visited on September 24, 2023)

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about whether the absence of a birth certificate is as detrimental as it’s often portrayed.
In many communities, especially in rural or less developed regions, formal birth
registration systems may be limited. These communities often have informal systems
of identity recognition, allowing children to participate in society without formal birth
certificates.

5. While some countries require birth certificates for school enrolment, others have more
flexible policies. These flexible policies demonstrate that a child’s access to education
is not solely contingent on the presence of a birth certificate. Alternative documentation
or affidavits can sometimes suffice. Denying admission to school to a child without a
birth certificate may violate the fundamental right to education under Article
21A. Under the Right to Education Act, 2009, for admission to elementary education,
a child’s age is determined on the basis of their birth certificate or any other document
that may be prescribed. The Act also provides that no child should be denied admission
on the grounds of lack of age proof.12

6. In some situations, birth certificates can be issued retroactively. This means that
individuals can obtain birth certificates later in life, which may enable them to access
services and rights they were initially denied. This demonstrates that the harm caused
by the initial absence of a birth certificate can often be rectified. Also, children are
incredibly resilient and adaptable. Their potential is not solely determined by official
documentation but by their innate abilities and aspirations. Therefore, the absence of a
birth certificate should not be seen as an insurmountable barrier to their success and
happiness.

12
Issues for Consideration The Registration of Births and Deaths (Amendment) Bill, 2023 (2023)
https://prsindia.org/billtrack/prs-products/issues-for-consideration-
4157#:~:text=This%20right%20may%20be%20curtailed,fall%20within%20the%20mentioned%20disqualificati
ons. (Last visited on September 24, 2023)

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ISSUE 4: Whether the Constitutional power of Court to frame laws has led to the
scenario where Legislature have become the Executive wing of the Judiciary?

1. It is humbly submitted that there needs to be separation of powers amongst different

organs of the government for its smooth functioning. This is to ensure that there is an
equitable distribution of powers amongst the legislature, executive bodies, and the
judiciary. While there is no codified provision, in the Indian Constitution, to justify the
doctrine of separation of powers, this concept is implied by the way the Constitution
has been drafted. From the description of the various duties discharged by these organs,
it is quite evident that judicial system has been conferred with an autonomous status -
making its activities ‘independent’ and precluded from scrutiny by the executive or
legislature13.
2. However, the doctrine is not watertight and is not applied in its strict sense in Aryavart.
It allows interaction among the entities and there is sufficient evidence to show that
there may be ‘incidental encroachment’ or ‘functional overlaps’ leading to bouts of
disagreement between the three organs.
3. In the concerned case the trans couple got married and gave birth to a child. Firstly, any
legal framework still does not recognise any homogenous marriage nor the Transgender
Persons Protection Act, 2019 recognises trans marriage. Therefore, registering of
marriage is controversial since the individuals cannot be brought under the header of
“bride and groom” or “men” and “women”. The Special Marriage Act, 1954 (SMA) do
recognises child born out of a void or voidable marriage as a legitimate child. However,
this provision cannot be put into effect in the concerned case because a marriage is void
in SMA u/s 24 only if any of the conditions specified in clauses (a), (b), (c) and (d) of
section 4 has not been fulfilled and the respondent was impotent at the time of marriage.
Trans marriage cannot be brought under the purview of any legislation and thereof the
marriage as well as the issuance of birth certificate is not covered by any legislation.
4. The issue here is of much graver nature and needs a whole new dimension. The intent
of the lawmakers in drafting Special Marriage Act was to include only heterosexual
marriages but the Acts’s character cannot be altered by mere interpretation. Right to
love, choose a partner and projecting sexual orientation are all fundamental rights but

13
Art. 50, Constitution of India, 1950

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compelling the state to recognise and validate the right to marry cannot be fundamental
rights.
5. “Social morality” and “constitutional morality” and the relation between two is worth
mentioning in this context. social morality is the set of values and norms that exist in
society.14These are set of values or conducts that are understood and accepted by
members of society. It helps people live together in harmony and avoid conflicts. Its
essence lies in being empathetic and acknowledging the feelings of human beings
towards one another. But now, this concept is being used to traumatize the existence of
minority groups. Whereas constitutional morality in its strictest sense implies a strict
and complete adherence to the constitutional principles as enshrined in the various
segments of the document. It is required that all constitutional functionaries to
"cultivate and develop a spirit of constitutionalism" where every action taken by them
is governed by and is in strict conformity with the basic tenets of the Constitution."
6. There were instances where constitutional morality prevailed over social morality, for
instance in Navtej Singh Johar vs. Union of India15 where the five-judge bench adopted
a reformative and a revolutionary approach while reading down Section 377. While
adjudicating the matter, the Court constructed the judgment around the three most
essential principles of transformative constitutionalism, constitutional morality, and the
right to privacy. In this case we are concerned with ‘marriage’ which is a socio-centric
institution, and the society can participate too. In Aryavart marriage have a social
character rather than just a mere transaction between two consenting individuals. The
need for societal participation and deliberation when addressing matters that aim to
reshape the heteronormative attitudes are embedded in legislations of Aryavart.
Therefore, involvement of broader society is required rather than being limited to only
a particular community.16
7. In every instance we cannot give priority to constitutional morality ignoring the
opinions of public i.e., social morality. A line needs to be drawn and balanced needs to
be strike. These matters are in the domain of legislatures just as the parliament made
the law for protection of transgenders (Transgender Persons Protection Act, 2019).

14
Social Morality vs. Constitutional Morality with special reference to Navtej Singh Johar V. Union of India,
Social Morality vs. Constitutional Morality with special reference to Navtej Singh Johar V. Union of India
(manupatra.com) last visited on 26 September 2023
15
Navtej Singh Johar vs. Union of India , AIR 2018 SC 4321
16
Legislation versus Judiciary, Legislature versus Judiciary (prsindia.org) last visited 26 September 2023

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Parliament would need to make a law for LGBTQ persons and the Apex Court could
not issue a declaration in the matter based on fundamental rights argument.
8. Justice Ganguly rightly raise the questions relating to ‘judicial legislations’ which
were17:
i. “Whether under our Constitution the judiciary can legislate, and if so, what is
the permissible limit of judicial legislation. Will judicial legislation not violate
the principle of separation of powers broadly envisaged by our Constitution;”
ii. “Whether the judiciary can legislate when in its opinion there is a pressing
social problem of public interest, or it can only make a recommendation to the
legislature or authority concerned in this connection.”

It is true that SC has repeatedly encroached in matters that are meant to be dealt by
other organs, for instance in Nipun Saxena v Union of India18again in Rambabu
Singh v Sunil Arora19. Yet there are other disastrous instances like the case of Assam
Sanmilita Mahasang v Union of India20, where the SC’s sour insistence to supervise
and regulate the National Registry of Citizens process in Assam has left millions
without citizenship.

9. Therefore, judiciary cannot step into shoes of other organs of government. It cannot
attempt to perform their duties without being subject to a similar degree of scrutiny and
accountability from the people – people who exercise their democratic rights in
choosing their elected representatives. “Judicial restraints” and “judicial activism”
needs to be practiced effectively by balancing the same.

17
Visakha v State of Rajasthan, AIR 1997 Sc 3011
18
Nipun Saxena v Union of India, (2009) 2 SCC 703
19
Rambabu Singh v Sunil Arora, (2020) 3 SCC 733
20
Assam Sanmilita Mahasang v Union of India, WRIT PETITION (CIVIL) NO. 274 of 2009

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PRAYERS

Wherefore, in the light of the issues raised and arguments advanced, and authorities cited, it
is humbly and humbly and respectfully prayed for this Hon’ble Supreme Court of Aryavart
may be pleased to:

1. In light of the aforementioned and legal precedents, it is prayed before the Hon'ble
Court to dismiss the petition of the Trans couple regarding the issuance of Birth
certificate.
2. The Respondents further pray the dismissal of the PIL of the NGO Samridhi.

AND/OR

Pass any order it may deem fit in the interests of justice, equity, and good conscience.

For This Act of kindness, The Respondent shall duty bound forever pray.

Sd/-

_____________________________

(Counsel for Respondent)

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