Moot Memorial For The Petitioner PDF 5
Moot Memorial For The Petitioner PDF 5
Moot Memorial For The Petitioner PDF 5
Author - Kaarkuzhali E - 3rd year B.A.LL.B Sabari -3rd year B.A.LL.B Pradeepa -3rd year B.A.LL.B From Chennai
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5 IILS NATIONAL MOOT COURT COMPETITION , 2021
TC 125_P
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5 IILS NATIONAL MOOT COURT COMPETITION,2021
IN THE MATTER OF :
VS
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INDEX
I ABBREVATIONS 03
II INDEX OF AUTHORITIES 04
1. CASES REFERRED 05
2. ONLINE SOURCES 06
3. BOOKS REFERRED 06
4. STATUTES REFERRED 06
IV STATEMENT OF FACTS 08
V ISSUES INVOLVED 10
VI SUMMARY OF PLEADINGS 11
VIII PRAYER 28
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ABBREVATIONS EXPANSION
Art. Article
Hon‟ble Honourable
Ors. Others
S/d Signed
SC Supreme Court
V. Versus
No. Number
& And
HC High Court
UP Uppam Pradesh
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INDEX OF AUTHORITIES
10. Pawan Kumar vs. State of Haryana (2003) 11 SCC 241 (SC)
11. C.C.E vs. Standard Motor Products AIR 1989 1298 SC 1298
12. Janshed Hormusji Wadia vs. Board of Trustees (2004) 3 SCC 214 (SC)
13. Sir Churila Mehta&Sons,Ltd. Vs. Century Spinning & AIR 1962 SC 1314
Manufacturing Co. Ltd
15. Kathi Ranning Rawat vs. State of Saurashtra AIR 1952 SC 123
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Sec 9 states that the conversion has to be displayed publicly on the district magistrate
office. This public display of once conversion has the potential to make a private affair a
public ceremony. Moreover, there are chances being targeted by fringe elements who do
not even shy away from lynching or beheading people in the name of Religion
Lucknow bench of Allahabad HC in the recent case of SMT.Safiya Sultana vs. State of
UP8 stating that laws should change with time and circumstances, made issue of public
notice under the special marriage act 19549 as directory. Thus, the court mandated that it
shall be optional for the parties to publish the notice. The provision for publishing notice
of marriage act was held to be intrusive of the rights of liberty and privacy. UP ordinance
has also a similar procedure, in fact a more advanced procedure.
Sec 12 – wherein the burden of proof as to whether a religious conversion was not
effected through misrepresentation, force, undue influence, coercion, allurement or by
marriage lies on the person who has caused the conversion and where such conversion
has been facilitated by any person, on such conversion.
Traditionally, in due process of model of criminal law it is the prosecution who has to
prove the case and an „accused is presumed to be innocent until proven guilty‟. Now in
case of this ordinance the Bop is shifted on the accused against the established criminal
jurisprudence. Being cognizable and non-bailable and even relatives can file an FIR
thereby subjecting the converted person to unnecessary harassments.
It is contended that the ordinance impinges upon the fundamental right to choice and
right to change of faith guaranteed under article 21 and right to equality and equal
protection before law under art 14 of the constitution.
8
HABEAS CORPUS No. – 16907 of 2020
9
The Special Marriage Act, 1954(Act No. 43 of 1954).
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10
The SC in case of Shafin jahan v. Ashokan K.M.case held that, the right to marry a
person of one‟s choice is integral to art 21 of the constitution. This right cannot be taken
away except through a law which is substantively and procedurally fair, just and
reasonable.
Further, in case of Justice K.S.Puttaswamy (Retd) v. Union of India11 the Apex while
stated that the right to choose a life partner was a facet of right to privacy.
Conclusion: Hence, the counsel for the petitioner submits that, the laws were against public
policy and society at large. Therefore, the UP prohibition of unlawful conversion of religion
ordinance 2020, is morally and constitutionally invalid.
10
AIR 2018 SC 357
11
AIR 2015 SC 3081
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II. WHETHER THE SPECIAL LEAVE PETITION FILED BEOFRE THE HON‟BLE COURT
UNDER ARTICLE 136 IS MAINTANABLE?
It is humbly submitted before the Hon‟ble court that the present SLP filed by the
Petitioner is maintainable in the SC [hereinafter as SC] under Art 136 of the constitution
of Amphissa.
If the SC does not intervene, it will result in gross injustice and that, miscarriage of
justice has already been occurred, by the judgement of District Magistrate who issued
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non-bailable warrant against Daniel and his family with complete disregard of
fundamental right of protection against arrest and detention.
Article 136 of the constitution elucidates that special leave to appeal by the SC -
This, SLP is maintainable as, firstly the appellant has „LOCUS STANDI‟ to approach the
Honourable SC. Secondly, the matter involves substantial question of law of general public
importance. Thirdly, grave injustice has been done.
It is humbly submitted before this Honourable court that the appellant has locus standi to
approach SC in the present case. Art-136 of the constitution is couched in the widest
phraseology.13
This court jurisdiction is limited only by its discretion. It is pertinent to note that the
scope of art 134providing appeals to the SC in criminal matters is limited whereas art
136Is very broad based and confers discretion on the court to hear “in any cause or
matter”. Therefore, criminal appeals may be brought to the SC under art 136 when these
14
are not covered by art 134.
12
Moot proposition para14
13
Nihal Singh & Ors v. State of Punjab, AIR 1965 SC26
14
Sadhu singh v. Pepsu, AIR 1954SC 271
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The jurisdiction conferred under art 136 on the SC is corrective one & not a restrictive
one and can be invoked when a question of law of general public importance arises, by
filing Special Leave Petition.
A duty is enjoyed upon the SC to exercise its power by setting right the illegality in the
judgements, it is well-settled that illegality must not be allowed to be perpetrated &
failure by the SC to interfere with the same would amount to allowing the illegality to be
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perpetuated.
Article 136 is the residuary power of SC to do justice where the court is satisfied that
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there is injustice. The principle is that this court would never do injustice nor allow
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injustice being perpetrated for the sake of upholding technicalities.
In the instant matter, the right to privacy and right to religion & right to protection against
arrest and detention is violated by the state which is a matter of general public importance
and therefore, calls for intervention by the SC.
It is humbly submitted by the petitioner before this Hon‟ble Court that, the matter
involves substantial question of law as it concerns the violation of fundamental right of
privacy, right of liberty, right of dignity & right of protection against arrest and detention
of the people and gross injustice has been done which has hastily and arbitrarily declared
through the ordinance brought by uppam Pradesh as vaild.
15
Pawan kumar v. State of Haryana, (2003) 11 SCC 241 (SC); see also H.M. Seervai, constitutional law of India
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(4 Ed. Vol. I2010)
16
C.C.E. V. Standard motor products AIR 1989 1298 SC 1298, see also H.M. Seervai, constitutional law of India
(4th E.d. Vol.II2010)
17
Janshed hormusji wadia v. Board of Trustees, Port of Mumbai, (2004)3SCC 214(SC)
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It is humbly submitted that the requirement to obtain prior permission to marry someone
from a different faith was unacceptable, and publicly displaying once conversion is
obnoxious that it makes a private affair a public ceremony. Moreover, making the offence
cognizable and non-bailable leads to unnecessary harasments. In the instant case, the
court has erred in deciding a very substantial question of law, related to right of life of the
people.
Whether a matter involves question of law, depends on whether it is of general
importance as it directly and substantially affects the rights of parties, or it has already
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been decided by the court. It will, therefore, depend on the facts and circumstances of
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each case whether a substantial question of law is involved in the case.
It is submitted that, the present case involves a matter of general public importance as it
directly affects the rights of the parties as the order is erroneous and prejudicial to the
interest of people.
The ordinance bought by the state and judgement of the District Magistrate is bad in the
eyes of law as it did not recognize the right to privacy & dignity of the people which is an
intrinsic part of right to life as fundamental right rather as a common law right. Grave
miscarriage of justice has occurred because of its serious and flagrant violation of law has
been committed by the state and Magistrate for which interference of the SC is required.
The requirement of permission to marry a person of different religion and making the
private affair a public display and declaring the offence cognizable and non bailable
constitute grave violation of right of dignity, liberty and protection from arrest &
detention and right to privacy of people, and grave injustice done by the Magistrate by
denying bail to Daniel‟s family and arrest them without warrant as valid.
18
Sir Churilal Mehta and Sons, ltd v. Century spinning and manufacturing co. ltd, AIR 1962 SC 1314
19
Sumati Dayal v. CIT, (1995)214 ITR 801.
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The SC is not preluded from going into the questions of facts under art 136, if it
considers it is necessary to do so.20 Art 136 uses the words „ in any cause or
matter‟. This gives widest power to this court to deal with any cause or matter.21
In the instant case, the ordinance reached the conclusion that right to get
converted , right to publishing the private affairs of a person, right to get marrying
to person of different faith cannot be held to be fundamental right as matter of
love jihad has been involved. Thus, from the above grounds, it is humbly
submitted that the petition is maintainable before the Hon‟ble SC of Amphissa.
Conclusion : Hence the counsel for the petitioner humbly submits that the special petition filed
by the petitioner is maintainable and the counsel request the court to accept the SLP of the
petitioner.
20
Kathi Ranning Rawat V. State of Saurashtra, AIR 1952 SC 123, See also, Achyut Adhicary v. West Bengal
AIR1963 SC 1039
21
Pritam singh v. The State AIR 1950 SC 169
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It is humbly submitted before the Hon‟ble court that the Uppam Pradesh prohibition of
unlawful conversion ordinance 2020, enacted by the government of Lunnow are
unconstitutional as though the law was passed by the legislature of the state, they are in
violation of part III of the constitution of Amphissa, which guarantees the people certain
fundamental rights and therefore, they are void, being in contravention with Art.13(2) of
the constitution.
It is most humbly submitted that the govt. of Lunnow which comes within the definition
22
of state under Art 12 formulated a ordinance named Uppam Pradesh prohibition of
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unlawful conversion of religion which later converted into a legislative enactment.
It is humbly submitted that the term ‘law’ includes any ordinances, order, bye-laws, rule,
regulation, notification, custom or usages having in the territory of India, the force of
law.24 Therefore, it is clear that not only law made by legislature but also an order or
notification or ordinance which takes away or abridges the fundamental rights conferred
by part III of the constitution would be void.25 In this particular case, at first instance, the
govt. formed a ordinance later it was enacted as statute to be known as “The Uppam
Pradesh prohibition of unlawful conversion of religion act 2020”26. Hence, the law
clearly falls within the ambit of art 13(3)(a) of the constitution.
22
Art 12, The Constitution of India, 1950.
23
Moot proposition, para 7
24
Art. 13(3)(a), The Constitution of India, 1950.
25
Union of India V. Col. L.S.N. Murthy, (2012) 1 SCC 718
26
Moot proposition para 7
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It is humbly submitted before the Hon‟ble court that the Right to privacy has been
recognized as a „basic inalienable right of an individual‟ and Uppam Pradesh
prohibition of unlawful conversion of religion act 2020 brought by the respondent is
in violation of art 14, 19, 21 and 25 of the constitution of India.
Right to live with a person of his/her choice irrespective of religion professed by
them, is intrinsic to right to life and personal liberty. Therefore, the state has clearly
derogated from its obligation to protect and safeguard the citizens of this country.
The main objective of art 13 is to secure the paramountacy of the constitution
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especially with regards to fundamental rights. The state is prohibited from making
any law which takes away or abridges rights conferred by part III of the
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constitution. If the state makes such a law then, it would be „still born law‟ and void
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to the extent of such contravention.
Though post-constitutional laws inconsistent with fundamental rights are void from
their very inception yet a declaration by the court of their validity will be necessary.30
Therefore, the up ordinance 2020, enacted by the govt. is void, and a declaration of
the same by the SC is necessary.
27
Renu V. District and Session Judge,Tis Hazari, AIR 2014 SC 2175
28
Art. 13(2), The Constitution of India, 1950
29
Deep Chand V. State of U.P., AIR 1959 SC 648.
30
Md.Ishaq v. State, AIR 1961 AII 532.
31
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148
32
Kharak Singh v. State of UP, AIR 1963 SC 1295
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A citizen under this right has the right to protect and safeguard the liberty of his own,
his family, marriage, procreation, motherhood, childbearing and education among the
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matters.
Art 21 protects the dignity of human life, one‟s personal autonomy, one‟s right to
privacy, etc. Right to dignity has been recognized to be an essential part of the right to
life. Here, in the present case, publishing one‟s private information ( i.e )conversion of
religion is very intimate and integral to one‟s personality and hence making it
mandatory to provide basic and intimate information is unconstitutional and violative
of fundamental right to privacy.
The Hon‟ble court in the case of K.S.Puttaswamy vs. Union of India34 case on the right
to privacy, which said; “ the autonomy of the individual is the ability to make decision
on vital matters of concern to life”.
[III.2.2] GROUNDS
33
Unni Krishnan v. State of A.P. (1964) 1 SCR 332.
34
AIR 2015 SC 3081.
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35
The SC in the case of Shafin Jahan V. Ashokan K.M. case held that ; the right to marry a
person of one‟s choice is integral to Art 21 of the constitution. The constitution
guarantees the right to life. This right cannot be taken away except through a law which
is substantively and procedural fair, just and reasonable. Intrinsic to the liberty which the
constitution guarantees as a fundamental right is the ability of each individual to take
decisions on matters central to the pursuit of happiness.
Allahabad HC judgement in Salamat Ansari V. state of UP36 case wherein the court
stated that : If the law permits two persons even of the same sex to live together
peacefully then neither any individual nor a family nor even state can have objection to
relationship of two major individuals who out of their own free will are living together.
Decision of an individual who is of the age of majority, to live with an individual of
his/her choice is strictly a right of an individual and when this right is infringed it would
constitute breach of his/her fundamental right to life and personal liberty as it includes
right to freedom of choice, to choose a partner and right to live with dignity as enshrined
in Art 21 of constitution of Amphissa.
In the Lucknow bench of Allahabad HC in the recent case of Smt. Safiya Sultana v. State
37
of UP stating that laws should change with time and circumstances made issue of public
notice under the special marriage act, 1954 as directory. Thus, the court mandated that it
shall be optional for the parties to the intended marriage to make a request in writing to
marriage officer to publish or not to publish a notice and follow the procedure of
objections. Thus, the provision of publishing notice marriage under the special marriage
act, 1954 was held to be intrusive of rights of liberty and privacy. The UP ordinance has
also a similar procedure.
35
AIR 2018 SC 357
36
W.P. No. 11367 Of 2020
37
HABEUS CORPUS No. – 16907 of 2020
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38
Mr. Wajeed Khan H B v. The Commisioner of Police , W.P.H.C.NO.92 OF 2020
39
W.P. 9404 (W) 2006
40
CRIMINAL APPEAL NO. 366 OF 2018 (Arising out of S.L.P. (Crl.) No. 5777 of 2017
41
Evangelical fellowship of India v. State of H.P CWP NO. 438 OF 2011
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The intrusive notice requirement can become a tool for violence against any person hoping to
change their faith. The right to privacy and right to choose one’s faith would be at risk of being
violated.
The right to choice has been recognized as an insegregable facet of liberty and dignity
under the constitution. The SC has, in a vast range of cases held that the right to choose
one‟s life partner is a fundamental right of two consenting adults.
The right of an individual to live with a person of their choice irrespective of religion
professed by them, is also intrinsic to the right to life and personal liberty.
42
In Lata singh vs. State of Uttar Pradesh ,apex court made clear that marrying a person
of one‟s choice cannot be counted as an offence.
Turning its back to the constitution, the ordinance makes assertion of choice effectively
impossible.
The true danger with this new so-called “love jihad” law lies not in its explicit textual
basis, which seems fairly innocuous prime facie. Instead , its threat lies in its ambiguity.
The prohibition of unlawful religious conversion, ordinance 2020 carries the potential to
be misused in an unconstitutional form.
Therefore, the state cannot shy away from its responsibility to safeguard and protect the
life and liberty of each of its citizens. Thus, it is for the state functionaries to evolve
methods and strategies to safeguard every citizen‟s right as guaranteed under Art 14 &15.
It is duty and responsibility of the state to safeguard and protect each individual from any
infringement on their fundamental right guaranteed under Art 25 of the constitution.
Each such act of infringement that is in violation of Art 25 of a person illustrates the
failure of the state to safeguard the right guaranteed under the said article.
Conclusion : Hence, the petitioner has filed this petition for directions to protect and safeguard
fundamental rights under article 14,15,21,25 of the constitution. Since the petitioner has no
alternate efficacious remedy but to approach this Hon’ble court under Article 32 of the
constitution of Amphissa for the reliefs prayed for herein.
42
Writ Petition (Crl.) 208of 2004
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Where in light of issues raised, arguments advanced, and authorities cited, it is prayed that this
Hon‟ble SC may be pleased to hold that:
And pass any other Order, Di rection, or Relief that it may deem fit in the Best I nterests of
S/d.
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