NSL11-R

NSL11
2ND DEO MANGAL MEMORIAL NATIONAL MOOT

COURT COMPETITION, 2023.
IN THE HON’BLE SUPREME COURT OF ARYAVRAT
PUBLIC INTEREST LITIGATION
WRIT PETITION NO. 2119 OF 2023
UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVRAT
In The Matter Between
SAMRIDHI AND OTHERS ….....Petitioner
V.
UNION OF ARYAVRAT ……..Respondent
UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF ARYAVRAT
-MEMORANDUM ON BEHALF OF THE RESPONDENT-

2ND DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2023
TABLE OF CONTENTS
Sl. No. Topic Title Page No.

1. CAUSE TITLE (COVER PAGE) 1
2. TABLE OF CONTENTS 2
3. LIST OF ABBREVIATIONS 3
4. INDEX OF AUTHORITIES 4
5. STATEMENT OF JURISDICTION 7
6. STATEMENT OF FACTS 8
7. ISSUES RAISED 10
8. SUMMARY OF ARGUMENTS 11
9. ARGUMENTS ADVANCED 13
ISSUE 01: WHETHER THE PIL IS MAINTANABLE IN THE 13

SUPREME COURT OF ARYAVRAT OR NOT AND IS IT
FEASIBLE TO IMPLEMENT UNIFORM CIVIL CODE IN A
COUNTRY LIKE ARYAVRAT?
15
ISSUE 02: WHETHER UCC IS VIOLATIVE OF ONE’S
FUNDAMENTAL RIGHTS AND OTHER PERSONAL
RIGHTS GURANTEED UNDER THE CONSTITUTION OF
ARYAVRAT AND IS IT THE STATE’S INTERFERENCE IN
THE REALM OF THE PERSONAL LAWS OF THE
SUBJECTS?
20
ISSUE 03: WHETHER THE NON- ISSUANCE OF THR
BIRTH CERTIFICATE FOR THE CHILD BORN FROM A
LGBTQIA COUPLE IS VIOLATION OF CHILD’S RIGHT
BY THE STATE
23
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?
10. PRAYER 27
2|Page
-Memorandum filed on behalf of the Respondents-
LIST OF ABBREVIATIONS
Sl.No. Abbreviation Description

1. AIR All India Reporter
2. Art. Article
3. SC Supreme Court
4. HC High Court
5. Ors Others
6. Govt Government
7. COA Constitution of Aryavrat
8. Hon’ble Honourable
9. No Number
10. LGBTQ Lesbian, Gay, Bisexual, Transgender and Queer
11. PIL Public Interest Litigation
12. DPSP Directive Principles of State Policy
13. NGO Non-governmental organisation
14. Govt Government
15. SCC Supreme Court Cases
16. SCR Supreme Court Reporter
17. UOI Union of India
18. Vol. Volume
19. Vs Versus
20. W.P. Writ Petition
3|Page
INDEX OF AUTHORITIES
BIBLIOGRAPHICAL INFORMATION
I. CASES CITED:
Sl.No Case Name Equivalent Citation(s)
.
1. Assam Sanmilitia Mahasangh and Ors. v. Union of (2015) 3 SCC 1.
India and Ors
2. Asstt. Collector of Central Excise v. Jainson Hosiery (1979) 4 SCC 22: AIR
1979 SC 1889.
3. Bachan Singh v. State of Punjab (1980) 2 SCC 684.
4. Bhaurao Shankar Lokhande v. State of Maharashtra 1965 SCC OnLine SC
28.
5. Chintaman Rao v. State of Madhya Prasad 1958 SCR 1340.
6. Common Cause v. Union of India. (1996) 1 SCC 753.
7. Dalip Singh v. State of Uttar Pradesh (2010) 2 SCC 114.
8. Jose Paulo Coutinho (2019) 20 SCC 85.
9. K.D. Sharma v. SAIL (2008) 12 SCC 481.
10. Lily Thomas v. Union of India (2000) 6 SCC 224.
11. Navtej Singh Johar v. Union of India (2018) 1 SCC 791.
12. P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578: 2002
SCC (Cri) 830.
13. Prakash v. Phulavati (2016) 2 SCC 36.
14. R. v. Kensington IT Commissioner (1917) 1 KB 486.
15. Rabindranath Bose v. Union of India (1970) 1 SCC 84.
16. Raj Deo Sharma (II) v. State of Bihar (1999) 7 SCC 604.
17. Raj Deo Sharma v. State of Bihar (1998) 7 SCC 507.
18. Ram Jawaya Kapur v. State of Punjab. AIR 1955 SC 549.
19. Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163.
4|Page
20. Reema Aggarwal v. Anupam (2004) 3 SCC 199.

21. Romesh Thappar v.State of Madras AIR 1950 SC 124.
22. S.R. Bommai v. Union of India (1994) 3 SCC 1.
23. S.S. Bola v. B.D. Sardana (1997) 8 SCC 522.
24. Sarla Mudgal v. Union of India (1995) 3 SCC 635.
25. State of Bihar v. Ram Manohar Lohia 1966 AIR 740.
26. Sunil Poddar v. Union Bank of India (2008) 2 SCC 326.

27. Tilokchand Motichand v. H.B. Munshi, (1969) 1 (1969) 1 SCC 110.
SCC 110.
28. Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110.
29. University of Kerala v. Council of Principals of (2006) 8 SCC 304.
Colleges, Kerala
30. Vishaka v. State of Rajasthan (1997) 6 SCC 241.
II. STATUTES REFERRED:
Sl. No. Statute Name

1.
The Constitution of India, 1950.
III. DICTIONARIES AND BOOKS/JOURNALS REFERRED:
1. A.R KHAN, THE CONSTITUTION OF INDIA (2d ed. 2014).
2. DD BASU, CONSTITUTIONAL OF INDIA, (7h ed. 1998).
3. DD BASU, SHORTER CONSTITUTION OF INDIA, (13h ed. 2001).
4. HM SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4h ed. 1996).
5. M P JAIN, INDIAN CONSTITUTIONAL LAW (7h ed. 2014).
6. P.M. BAKSHI, THE CONSTITUTION OF INDIA (14h ed. 2017).
5|Page
IV. ELECTRONIC/ONLINE SOURCES:
I. http://supremecourtofindia.nic.in
II. www.SCCOnline.com
III. http://www.manupatrafast.com/
6|Page
STATEMENT OF JURISDICTION
It is humbly submitted that the petitioners have filed this petition before the Supreme
Court under Article 32 of the Constitution of Sindia, 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 respondents maintains that there is no violation of rights. Therefore, this Honourable
Court need not to entertain this jurisdiction.
The present memorandum sets forth the facts, contentions and arguments in the present
case.
1
Article 32 Part III Constitution of Khazland pari materia to the Constitution of India, 1950.
7|Page
STATEMENT OF FACTS
1. Aryavart is a Sovereign Country in Asiana consisting of 28 States and 8 Union

territories having a conservative society with the population around 140 crores. 70% of
the population practice Hinduism, 20% practice Islam, and other 10% practice other
religions. Only the State of Kankan which was a Portuguese colony has 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

trans-woman and 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 considered taboo and unacceptable by the society and did not disclose their
relationship. 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 but still the homosexual couples faced discrimination and
stigma in the society.
3. The societal norm and the entire government machinery had only recognition of male
and female stratum. 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. The couple belonging to LGBTQ+ community in
the present case decided to disclose their relationship and to get officially married. They
respected each other’s faith and decided to get married under their respective Customs.
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.
4. In the meantime, Mrinal identified to be a male and therefore the father 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 same required name of father
and mother. Their application for childbirth certificate and marriage certificate was
rejected by the authorities in the State of Avanti. They find that they were in a legal
8|Page
conundrum. Because of lack of a Uniform Civil Code to govern the personal laws, they
were stuck in a limbo. Hence, they approached the Hon’ble Supreme Court of Aryavart
vide filing a writ petition under article 32 of the constitution of Aryavart with plea of
issuance of birth certificate to their child and recognition of their marriage and
consequently sought to implement a Uniform Civil Code which recognizes both same
sex marriage and inter-religious marriage and grants equal rights to all irrespective of
sex and religion and was pending before the Hon’ble Supreme Court.
5. Simultaneously, NGO stood for the Muslim women for the facts that they are treated
poorly, and they do not have legal weapons to claim maintenance or file such claims
before the Courts as their rights are being curtailed by their personal laws. Hence, the
NGO wants the implementation of Uniform Civil Code across the country of Aryavart
wherein women irrespective of religion will have equal rights.
6. The All-Indus Muslim Personal Law Board is opposing Implementation of Uniform

Civil Code as they claim that it infringes their personal right and rights granted under
the Constitution. Thus, they filed Impleading Petition in both the Public Interest
Litigations filed by the NGO and the Trans-couple along with violation of secular
structure of the Aryavart. The Government of Aryavart is opposing a Uniform Code
which recognizes LGBTQIA community stating that such marriages are not recognized
in any religions and therefore, opposed the ground of maintainability as an alternative
remedy.
7. 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 recognizing
the importance of the case had permitted live telecast of the hearings and posted all
applications together along with the question of maintainability of PIL and necessity of
impleading Indus Muslim Personal Law Board for hearing.
9|Page
ISSUES RAISED
I. WHETHER THE PIL IS MAINTANABLE IN THE SUPREME COURT OF

ARYAVRAT OR NOT AND IS IT FEASIBLE TO IMPLEMENT UNIFORM
CIVIL CODE IN A COUNTRY LIKE ARYAVRAT?
II. WHETHER UCC IS VIOLATIVE OF ONE’S FUNDAMENTAL RIGHTS AND

OTHER PERSONAL RIGHTS GURANTEED UNDER THE CONSTITUTION OF
ARYAVRAT AND IS IT THE STATE’S INTERFERENCE IN THE REALM OF
THE PERSONAL LAWS OF THE SUBJECTS?
III. WHETHER THE NON- ISSUANCE OF THR BIRTH CERTIFICATE FOR THE
CHILD BORN FROM A LGBTQIA COUPLE IS VIOLATION OF CHILD’S
RIGHT BY THE STATE?
IV. 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
I. WHETHER THE WRIT PETITION BROUGHT BEFORE THE HON’BLE

COURT IN THE FORM OF PUBLIC INTEREST LITIGATION IS
MAINTAINABLE?
It is Humbly submitted that the PIL filed before this Hon’ble court is not maintainable
as it is not in public interest and as there is alternative remedy available
where there is alternative statutory remedy, court should not interfere unless the
alternative remedy is too dilatory or cannot grant quick relief. This Hon'ble Court, must
therefore, exercise its discretion to quash the instant writ on grounds of non-
maintainability and it is not feasible to implement UCC in a country like Aryavart
which is characterized by its rich religious diversity and pluralistic society.
II. WHETHER UCC IS VIOLATIVE OF ONE’S FUNDAMENTAL RIGHTS AND

OTHER PERSONAL RIGHTS GURANTEED UNDER THE CONSTITUTION
OF ARYAVRAT AND IS IT THE STATE’S INTERFERENCE IN THE REALM
OF THE PERSONAL LAWS OF THE SUBJECTS?
It is Humbly submitted that Implementation of UCC leads to violation of ones

fufundamental rights and other personal rights guaranteed under the constitution of
Aryavrat where it violates the fundamental rights given under Article 25 &26 of the
Constitution which imparts freedom of conscience and free profession, practice and
propagation of religion and given religious denominations and sections freedom over
their religious affairs. while Article 29 safeguards their prerogative to preserve their
unique cultural heritage. Hence it is humbly submitted no to implement UCC in a
country like Aryavrat.
11 | P a g e
III. WHETHER THE NON- ISSUANCE OF THR BIRTH CERTIFICATE FOR THE
CHILD BORN FROM A LGBTQIA COUPLE IS VIOLATION OF CHILD’S
RIGHT BY THE STATE?
It is Humbly submitted before this Honourable Court, that the withholding of a birth
certificate for a child born to an LGBTQIA couple should not be construed as a
violation of the child's rights by the state, given the absence of legal recognition for
same-sex marriage. the non-issuance of birth certificates to a child born to a
transgender couple has been ostensibly justified on the grounds of preserving public
order.
IV. 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 Humbly submitted that Judicial law-making per se can be said to be violative of

the rule of separation of power and the judiciary cannot embark upon itself the role of
a duly elected legislature which represents the very democratic basis of the structure of
our Constitution and legal order. Hence, the constitutional power of court to frame laws
has led to the scenario where legislature have become the executive wing of the
judiciary.
12 | P a g e
ARGUMENTS ADVANCED
ISSUE 01. WHETHER THE WRIT PETITION BROUGHT BEFORE THE HON’BLE
COURT IN THE FORM OF PUBLIC INTEREST LITIGATION IS MAINTAINABLE?
It is most Humbly submitted that the PIL filed before the Hon’ble Supreme Court of Aryavrat
is not maintainable. The maintainability of a petition under Article 32 depends on the facts of
each case.2 The question as to when the Supreme Court should entertain the claim depends on
the nature of the fundamental right alleged to have been infringed and the remedy claimed.3
In the present case, the petition is not maintainable on the ground that the Petitioner has not
exhausted Alternative Remedies
[A]. THE PETITIONER HAS NOT EXHAUSTED ALTERNATIVE REMEDIES
1. The power to grant writs under Article 32 is a discretionary power vested in the hands on
this Hon'ble Court.4 It is a well settled proposition of law that existence of an alternative
adequate remedy is a factor taken into consideration in a writ petition.5 The same has been
upheld in a plethora of judgments rendered by this Hon'ble Court.
2. In the instant case, the Petitioner has approached the Hon’ble Apex Court directly under an
Article 32 petition in spite of having an alternative remedy available in Article 226 of the
Constitution.
3. It was held by this Hon'ble apex court in Asstt. Collector of Central Excise v. Jainson
Hosiery6 where there is alternative statutory remedy, court should not interfere unless the
alternative remedy is too dilatory or cannot grant quick relief.
2
Assam Sanmilitia Mahasangh and Ors. v. Union of India and Ors., (2015) 3 SCC 1; Tilokchand
Motichand v. H.B. Munshi, (1969) 1 SCC 110.
3
Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110; Rabindranath Bose v. Union of India, (1970) 1 SCC
84.
4
K.D. Sharma v. SAIL, (2008) 12 SCC 481; Dalip Singh v. State of Uttar Pradesh, (2010) 2 SCC 114; Sunil
Poddar v. Union Bank of India, (2008) 2 SCC 326; R. v. Kensington IT Commissioner, (1917) 1 KB
486; Abhudhya Sanstha v. Union of India, (2011) 6 SCC 145
5
Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163
6
Asstt. Collector of Central Excise v. Jainson Hosiery, (1979) 4 SCC 22: AIR 1979 SC 1889.
13 | P a g e
4. This Hon'ble Court, must therefore, exercise its discretion to quash the instant writ on
grounds of non-maintainability. Thus, the respondents humbly submit that the present
PIL is not maintainable on the ground that alternative remedy has not been exhausted.
5. It also it is Humbly submitted that it is not feasible to implement UCC in a country like
Aryavart. Aryavart is characterized by its rich religious diversity and pluralistic society,
where different religious communities, including Hindus, Muslims, Christians, Sikhs, and
others, are governed by distinct personal laws that regulate matters such as marriage,
divorce, adoption, and inheritance. The prospect of implementing a Uniform Civil Code
(UCC) poses a formidable legal challenge, as it would necessitate the harmonization of
these varied personal laws, a task of considerable complexity.
6. It is pertinent to note that B.R. Ambedkar believed that a Uniform Civil Code (UCC) was
a desirable concept but stressed that it should be entirely voluntary. The 21st Law
Commission, in its consultation paper on family law reform, concluded that implementing
changes in family laws for various communities would be more effective in safeguarding
the rights of women and children compared to introducing a UCC.
7. Due to disagreements within the Constituent Assembly regarding the UCC, which would
govern personal matters like marriage, divorce, adoption, inheritance, and succession, the
Code was included in the Constitution as part of the Directive Principles of State Policy
(DPSP) rather than as a fundamental right. Consequently, it wasn't an enforceable
provision." This Commission has, therefore, addressed laws that exhibit discrimination
rather than advocating for a UCC, which is neither necessary nor advisable at this
juncture. Many countries are now moving towards acknowledging and respecting
differences, where the mere existence of diversity does not signify discrimination but
reflects the strength of a vibrant democracy," the report stated. It further emphasized,
"Cultural diversity should not be compromised to the extent that our pursuit of uniformity
itself poses a threat to the territorial integrity of the nation."
8. A central argument put forth for non-feasibility of the Uniform Civil Code (UCC) focuses
on its potential ramifications for minority communities. Personal laws are deeply
interwoven with the religious identities and customary practices of these communities.
They argue that the enforcement of a uniform civil code could potentially curtail the
specific rights and protections that minority groups currently possess and erode their
14 | P a g e
cultural autonomy. The preservation of minority rights and the safeguarding of their
distinct traditions are regarded as imperative within the context of India's pluralistic and
multicultural society.
9. Within the constitutional framework of India, a fundamental cornerstone is the assurance

of religious liberty for every citizen. Detractors of the Uniform Civil Code (UCC) assert
that the imposition of a uniform civil code could be construed as a transgression against
this inherent entitlement. They contend that individuals should enjoy unimpeded freedom
to exercise their religious convictions and adhere to their respective religious legal
systems without any imposition or intrusion by the state.
10. This principle of religious freedom encompasses not only religious worship but also
various facets of an individual's life, including the regulation of personal matters such as
marriage, divorce, and inheritance through religiously grounded laws. Critics argue that
any attempt to standardize personal laws has the potential to encroach upon this
constitutionally safeguarded liberty, thereby constraining individuals from adhering to
their religious traditions according to their personal beliefs.
11. In pursuit of the constitutional objective laid out in Article 44, there have been two
instances where Bills advocating for a Uniform Civil Code (UCC) were introduced in the
Parliament. The first attempt was made in 2009, followed by a second attempt in 2020.
However, both bills faced significant opposition and were eventually withdrawn without
formal debate, this clearly shows the feasibility of UCC in a pluralistic nation.
12. Therefore, it is respectfully submitted before the court that in a nation as diverse and
pluralistic as Aryvrat, it is of paramount importance to delicately navigate the equilibrium
between fostering uniformity and preserving the religious freedoms and cultural traditions
of its citizens.
ISSUE 02. WHETHER UCC IS VIOLATIVE OF ONE’S FUNDAMENTAL RIGHTS

AND OTHER PERSONAL RIGHTS GURANTEED UNDER THE CONSTITUTION
OF ARYAVRAT AND IS IT THE STATE’S INTERFERENCE IN THE REALM OF
THE PERSONAL LAWS OF THE SUBJECTS?
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It is Humbly submitted before this Hon’ble Supreme Court that the implemention of UCC
leads to a violation of one’s fundamental rights guaranteed under the constitution of Aryavart
and it leads to a state’s interference in the realm of the personal laws of subjects. A country
with diverse languages and traditions, expecting people of diverse culture and traditions to act
on the same laws, based on a uniform system is somewhat preposterous.
[A]. ALL INDUS MUSLIM PERSONAL LAWS BOARD’S CONTENTION

TOWARDS IMPLEMENTATION OF UNIFORM CIVIL CODE.
1. The Country India takes pride in its integrity within diversity. For maintaining diversity,
we need to respect every minority community’s personal choice and law which has led
this nation to live in peace for such a long duration of time. The impracticality of this
issue lies in the fact that there are 14.2% Muslims in India and any move towards
implementing UCC has received heavy opposition and criticism from their side. So, it is
an injustice to them by imposing majority Hindu views on them. A secular India is what
the founding fathers promised when they formulated the Constitution and that is what the
minority is demanding for. The government must respect the emotions of the minority
population and thus decide on whether to infringe upon the personal law or not. In the
landmark judgment of S. R. Bommai v Union of India7 the honourable Supreme Court
explained the concept of Secularism as,
2. “The Constitution has chosen secularism as its vehicle to establish an egalitarian social
order. Secularism is part of the fundamental law and basic structure of the Indian political
system.”
3. In the instant case it is pertinent to note that Government of Aryavart whose ideology is
based out of the majoritarian religion supported to impose UCC where it violates the
fundamental rights given under Article 25 &26 of the Constitution which imparts freedom
of conscience and free profession, practice and propagation of religion and given religious
denominations and sections freedom over their religious affairs. while Article 29
safeguards their prerogative to preserve their unique cultural heritage.
7
S.R. Bommai v. Union of India, (1994) 3 SCC 1
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4. According to the 21st Law Commission8, led by former Supreme Court judge Balbir Singh
Chauhan, the evaluation of the “Reform of Family Law” suggests that the development of
a Uniform Civil Code is presently deemed unnecessary and not recommended. The
Commission expressed the viewpoint that the presence of disparities does not necessarily
indicate discriminatory practices, but rather serves as an indication of a strong and vibrant
democratic system. It has been observed that a growing number of nations are shifting their
focus towards acknowledging and accommodating differences instead of relying on legal
frameworks that promote uniformity among culturally diverse populations. This shift is
driven by the recognition that such uniform provisions tend to be unjust towards
marginalised and vulnerable groups.
5. In the year 2016, the Rashtriya Adivasi Ekta Parishad9, an organisation purporting to
advocate the interests of the Adivasi community and representing a population of
approximately 110 million tribal individuals, initiated legal proceedings in the Supreme
Court with the objective of safeguarding their cultural traditions and religious practises.
This included the preservation of their rights to engage in polygamy and polyandry, matters
that would potentially fall under the purview of a Uniform Civil Code. DR. B.R Ambedkar
was of the view that it was “desirable” but should be totally “voluntary”, the consultation
paper on the reform of family law by the 21st law Commission concluded that reforms in
family laws of different communities would provide a better guarantee of securing rights
for women and children than bringing in UCC.
6. In the instant case it is to be noted that All Indus Muslim Personal law Board is opposing
for the implementation of Uniform Civil Code because due to the implementation of UCC
in the name of the gender justice, integrity and because of majoritarian religion supported
government would divest the minorities culture practices etc….
7. It is pertinent to note that in Sarla Mudgal Case10; and Lily Thomas Case11 The facts of
this case, had nothing to do with Muslims or Islamic Law. Be it the Thomas case or the
Mudgal case, the issue was of Hindu married men committing bigamy to avail a second
marriage, without dissolving the first and just by converting from Hinduism to Islam. Facts
in these cases deserved condemnation of character of those delinquents who found an
8
21st Law Commission
9
https://www.outlookindia.com/national/beyond-the-civil-codes-magazine-290741
10
Sarla Mudgal v. Union of India, (1995) 3 SCC 635
11
Lily Thomas v. Union of India, (2000) 6 SCC 224
17 | P a g e
opportune moment to relinquish their own faith and belief but on reading of the judgment
it appears that Mohammaden Law has been criticized which could have been avoided. It is
necessary to point out this fact because these judgments are cited to criticize Muslims at
large and requirement of UCC when a discussion is found in public domain or in judicial
proceedings.
8. Jose Paulo Coutinho12, The facts of this case had nothing to do with Muslims or Islamic
Law. This case was in relation to succession of property amongst the family members of
Non-Muslims and the Portuguese Civil Code 1867 and Succession Act of 1925. The Court
discussed all succession laws including the Muslim Personal Law (Shariat) Application Act
1937. However, for the Portuguese Civil Code (uniformly applicable in Goa), the Supreme
Court stated that Goa is a shining example of an Indian State .This observation of being
‘shining example’ of Uniform Civil Code, if it is understood in the context of whole of
India in terms of the proposed draft of the Law Commission, then it is submitted that
Portuguese Civil Code, is neither a Uniform Code nor it is in consonance with the popular
perceptions of gender justice, equality, national integration, et al. The Code is discussed in
the forthcoming parts of the present Representation.
9. Prakash v. Phulavati13, The facts of this case had nothing to do with Muslims or Islamic
Law, but it gave birth to suo moto proceedings before the Supreme Court to decide Muslim
issues later on confined to the Triple Talaq issue after the judgment known to be as ‘Shayara
Bano Case.
[B]. CONTENTION RAISED AGAINST IMPLEMENTATION OF UNIFORM CIVIL

CODE WHICH RECOGNISES SAME-SEX MARRIAGE.
10. Legal recognition of same-sex relations in India is not merely a political or a legal question
but also the religious debates revolve around it. Marriage in India is a matter of personal
laws, deeply enlaced with the religious beliefs of the people therefore, any change in their
personal laws may be perceived by the faction of religious communities as attack on their
beliefs. In Navtej Singh Johar case14, the Special Marriage Act, 1954, which was enacted
to recognize special marriages irrespective of religion also provides for the heterosexual
marriages only. Further, if Parliament provide marriage rights to LGBTQ community, it
12
Jose Paulo Coutinho12(2019) 20 SCC 85
13
Prakash v. Phulavati, (2016) 2 SCC 36
14
Navtej Singh Johar v. Union of India, (2018) 1 SCC 791
18 | P a g e
will face a plethora of challenges relating to adoption, maintenance, custody rights and
inheritance.
11. Where a Supreme Court hearing a batch of 18 LGBTQ couples seeking the legalisation of
same sex marriages in India. The Centre has argued that if both parties in a marriage are
referred to a “person”, a number of administrative problems will arise. Unlike heterosexual
marriage, if person died, who would be called the widow or widower, Problem in passports
and other documentation etc,
12. The Hon’ble Court has in the past had occasion to define marriage. In Reema Aggarwal
v. Anupam15, it has been held that to constitute a marriage in the eye of the law, it has first
to be established that the same was a valid marriage. Strong reliance was placed on
Bhaurao Shankar Lokhande v. State of Maharashtra 16 in that context. Reference was
also made to Sections 5(i), 11 and 16 of the Hindu Marriage Act, 1955 (for short “the
Marriage Act”) to contend that the stipulations of conditions of a valid marriage, the
circumstances in which the marriage becomes void and the protection given to children of
void and voidable marriages respectivly makes the position clear that wherever the
legislature wanted to provide for contingencies flowing from void or voidable marriages,
it has specifically done so. It is latently evident from Section 16 of the Marriage Act. There
is no such indication in Section 498-A IPC. The language used is “husband or relative of
the husband”. Marriage is a legal union of a man and a woman as husband and wife and
cannot extend to a woman whose marriage is void and not a valid marriage in the eye of
the law.
13. It is submitted that registration of marriage of same sex persons also results in violation of
existing fundamental rights and personal as well as codified law provisions. The Parliament
has designed and framed the marriage laws in the country, which are governed by the
personal laws/codified laws relatable to customs of various religious communities, to
recognise only the union of a man and a woman to be capable of legal sanction, and thereby
claim legal and statutory rights and consequences. It is submitted that any interference with
the same would cause a complete havoc with the delicate balance of personal laws in the
country and in accepted societal values.
15
Reema Aggarwal v. Anupam, (2004) 3 SCC 199
16
Bhaurao Shankar Lokhande v. State of Maharashtra, 1965 SCC OnLine SC 28
19 | P a g e
14. Hence it is Humbly submitted before this Hon’ble Court that implementation of UCC is
violative of one’s fundamental rights and other personal rights guaranteed under the
constitution of Aryavart.
ISSUE 03. WHETHER THE NON- ISSUANCE OF THR BIRTH CERTIFICATE FOR
THE CHILD BORN FROM A LGBTQIA COUPLE IS VIOLATION OF CHILD’S
RIGHT BY THE STATE?
1. It is Humbly submitted before this Honourable Court, that the withholding of a birth
certificate for a child born to an LGBTQIA couple should not be construed as a violation
of the child's rights by the state, given the absence of legal recognition for same-sex
marriage.
2. Notably, the Supreme Court of India, in its landmark ruling in the case of Navtej Singh
Johar vs. Union of India17, delivered a historic judgment by striking down Section 377 of
the Indian Penal Code. This particular law, rooted in colonial history and existence for 158
years, previously criminalized consensual homosexual activities. In a marked departure
from its previous position, the Supreme Court definitively found Section 377 to lack
rationality and to be arbitrary in its enforcement.
3. Despite the decriminalization of Section 377 within the Indian Penal Code, the LGBTQ+
community continues to face substantial obstacles in securing fundamental civil rights.
Foremost among these is the right to marriage, which serves as a gateway to various other
rights, including those about parenthood and inheritance, and can lead to their social and
legal acknowledgment.
4. Regrettably, it has become apparent that contemporary personal laws in India, including
the Special Marriage Act, predominantly cater to heterosexual unions and do not extend
the institution of marriage to homosexual couples.
5. Along with that Article 19 of the Indian Constitution, a cornerstone of fundamental rights,
upholds the essential freedom of speech and expression. While the explicit reference to
17
supra
20 | P a g e
LGBTQ+ rights is absent within Article 19, it plays an integral role in the overarching
constitutional framework that can be invoked to safeguard the rights of LGBTQ+
individuals in India.
6. Article 19(1)(a) of the Indian Constitution safeguards the freedom of expression,

extending beyond mere verbal or written communication to encompass the expression of
one's core identity, beliefs, and orientation. This fundamental right provides protection
not only for articulating ideas but also for openly and authentically expressing one's
sexual orientation and gender identity.
7. But the freedoms which have been provided by Article 19(1) are not absolute as no rights
can be, each of these rights is liable to be controlled and regulated to some extent by-laws
made by the parliament or the state legislatures., and accordingly clauses (2) to (6) of
Article 19 lays down the grounds on which the legislature can impose reasonable
restrictions to the rights guaranteed by Article 19(1) (a) to (g).
8. The restrictions that are in coherence with the national interest can be illustrated as
Security of State, Friendly relations with foreign states, Public Order, Decency and
Morality, Contempt of Court, Defamation, Incitement to an offense, Sedition.
9. In the case of Chintaman Rao v. State of Madhya Pradesh18, the Supreme Court
opined that a restriction to be reasonable shall not be arbitrary and shall not be beyond
what is required in the interest of the public.
10. In the instant case, it is noteworthy that while the Supreme Court of Aryvrat has taken the
significant step of decriminalizing homosexuality, the legal recognition of same-sex
marriages has yet to be established. Consequently, the union of the couple in question
remains unregistered, leading to legal complications. Additionally, the non-issuance of
birth certificates to a child born to a transgender couple has been ostensibly justified on
the grounds of preserving public order.
11. Despite recent strides in acknowledging transgender rights in specific areas, substantial
gaps persist in the recognition of their rights across various spheres, particularly
concerning matters of marriage. It is important to recognize that same-sex marriage
currently lacks recognition in any religious framework and is perceived as running
18
Chintaman Rao v. State of Madhya Prasad, 1958 SCR 1340
21 | P a g e
counter to established traditional and cultural values within Aryvart. These factors
contribute to the complex legal landscape surrounding LGBTQ+ rights and marriage in
the region.
12. From a cultural vantage point, marriage holds a sacred status in India, deemed a societal
contract between two families that serves as a conduit for the perpetuation of family
lineage and traditions. The prevailing ethos in traditional Indian society leans
conservatively, with limited acceptance of same-sex relationships. LGBTQ+ individuals
often encounter social stigma and discrimination, and their unions are frequently
considered unconventional.
13. From a religious outlook, several major religions in India, including Hinduism, Islam, and
Christianity, regard homosexuality as a transgression. These faiths define marriage as a
union exclusively between a man and a woman, thus precluding the recognition of same-
sex marriage. In the realm of legal frameworks, India does not currently acknowledge
same-sex marriage. The Indian Constitution does not explicitly reference sexual
orientation. Although the Supreme Court decriminalized homosexuality in 2018, same-
sex marriage remains outside the bounds of legality. LGBTQ+ individuals do not enjoy
the same legal privileges as heterosexual couples, including rights related to marriage,
adoption, and inheritance.
14. In the case of Ram Manohar Lohia vs. the State of Bihar19, the Supreme Court
rendered a significant judgment, delineating the concept of 'public order' within the
context of constitutional freedoms. The Court articulated that an action must have an
impact on the community or the public at large to be deemed as affecting 'public order',
distinguishing it from a mere contravention of the law. While contravention of law
invariably disrupts order, for it to qualify as a matter affecting public order, it must have
repercussions on the broader community or the general public.
15. Public order, as commonly understood, is synonymous with public peace and safety. The
Seventh Schedule of the Indian Constitution, under List 2, delegates the authority to
legislate on aspects concerning public order to the states.
19
State of Bihar v. Ram Manohar Lohia, 1966 AIR 740
22 | P a g e
16. In the case of Romesh Thapar v. State of Madras20, the Supreme Court made a crucial
distinction between public order, the security of the state, and law and order. The Court
clarified that public order should not be conflated with other categories. Furthermore, in
situations involving local breaches of public order, there exists no justification for
imposing restrictions on the exercise of freedoms. The Supreme Court expounded that
'public order' signifies the preservation of public peace, safety, and tranquillity.
17. Therefore, it is respectfully submitted that the decision to withhold a birth certificate for a
child born to an LGBTQIA couple should not be interpreted as a violation of the child's
rights by the state. This position is grounded in the absence of legal recognition for same-
sex marriage, and it falls within the ambit of reasonable restrictions, especially in light of
the potential impact that recognition of same-sex marriage could have on public order
within 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?
It is 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.
[A]. JUDICIAL LEGISLATION IS VIOLATIVE OF SEPARATION OF

POWERS
1. There exists a well-demarcated zone of constitutionally permissible activity, and for the
judiciary to indulge in law-making is to overstep its limitations. In a strict sense there are
instances of judicial excessive that fly in the face of the doctrine of separation of
powers. The Indian Constitution has not indeed recognised the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts or branches of the
Government have been sufficiently differentiated and consequently it can very well be said
that our Constitution does not contemplate assumption by one organ or part of the State, of
functions that essentially belong to another. The courts of the country have sometimes
clearly crossed the limits of the judicial function and have taken over functions which
20
Romesh Thappar v.State of Madras, AIR 1950 SC 124
23 | P a g e
really belong either to the legislature or to the executive. The power to legislate has not
been conferred on the courts. Thus, judiciary should not encroach into the sphere of the
other organs of the State and it cannot legislate.
2. Indian Constitution does not strictly accept the concept of separation of power, as laid
down in Ram Sahib Ram Jawaya Kapur v. State of Punjab21. It has not indeed recognised
the doctrine of separation of powers in its absolute rigidity but the functions of the different
parts or branches of the Government have been sufficiently differentiated. Hence, the
judiciary to indulge in lawmaking is to overstep its limitations. Moreover, allowing an
unelected body like the judiciary to share the burden of lawmaking is always criticised as
it is extraneous to that of the people's will.
3. Judicial legislation for the first time was checked by a 7-Judge Bench decision in P.
Ramachandra Rao v. State of Karnataka22, wherein the Court held that giving directions
of a legislative nature is not a legitimate judicial function. The Court was considering the
question of whether the bar of limitation for criminal trials set by smaller Benches of the
Supreme Court in “Common Cause”, A Registered Society v. Union of India23, Raj Deo
Sharma (1) v. State of Bihar24 and Raj Deo Sharma (2) v. State of Bihar25 were valid.
The Supreme Court held that the directions given in the aforesaid decisions were invalid as
they amounted to directions of legislative nature which only the legislature could give.
4. Even in Bachan Singh v. State of Punjab26 a five-Judge Bench headed by Y.V.

Chandrachud, C.J. held that “We must leave unto the legislature, the things that are the
legislature's. ‘The highest judicial duty is to recognise the limits on judicial power and to
permit the democratic process to deal with matters falling outside of those limits.’” Even
with regard to Vishaka Guidelines27, the Court expressed its concern much later on being
an interim Parliament.
5. In University of Kerala v. Council of Principals of Colleges28 the Court stated that there
is a broad separation of power between the three organs and hence one organ of the State
21
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.
22
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 : 2002 SCC (Cri) 830.
23
Common Cause v. Union of India, (1996) 1 SCC 753.
24
Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507
25
Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604
26
Bachan Singh v. State of Punjab, (1980) 2 SCC 684
27
Vishaka v. State of Rajasthan, (1997) 6 SCC 241
28
University of Kerala (1) v. Council of Principals of Colleges, Kerala, (2006) 8 SCC 304
24 | P a g e
should not encroach into the domain of another organ. The judiciary should not therefore
seek to perform legislative or executive functions. The Court expressed doubts on the
judgment of Vishaka29 and raised the concerns as to whether the Court can convert itself
into an interim Parliament and make law until Parliament makes a law on the subject. Thus
it referred the matter to a Constitutional Bench.
[B]. COURTS DO NOT REPRESENT THE WILL OF THE PEOPLE AND THEY
ARE NOT FULLY EQUIPPED TO LEGISLATE
6. It is pertinent to note that the legislature has a higher footing when compared to the judiciary
since the members of the legislature are more proximate to the people as they are the
representatives of the people being directly elected by them and also are directly
accountable to them.30 It is the consent of the people or a majority of the people that
validates a law.31 Legitimacy of a law is derived from the people's will, and it is only the
legislature that can validly represent the same.32 To allow an unelected body like the
judiciary to share the burden of law-making is to make the validity of laws based on
considerations extraneous to that of the people's will.33
7. The power to legislate is given to the legislature and not to the judiciary. The judiciary has
only to ensure that the legislature does not exceed its bounds or limits and that the
legislation is largely in consonance with and certainly not contrary to or violative of the
provisions of the Constitution and its basic features and tenets. This is obvious from the
fact that the country is ruled by legislation enacted by the legislature (Articles 245-246 read
with the Seventh Schedule) and not by judicial law-making, which is a power essentially
to oversee the validity of the legislation and not to substitute it. This view is borne out by
the fact that the judges take oath (Third Schedule Part IV) that they “will bear true faith and
allegiance to the Constitution of India as by law established”. Judicial review is therefore
29
Vishaka v. State of Rajasthan, (1997) 6 SCC 241
30
Shubhankar Dam, “Law-making Beyond Lawmakers: Understanding The Little Right & The Great Wrong
(Analyzing The Legitimacy of The Nature of Judicial Law Making In India's Constitutional Dynamic)”, 13 TUL.
J. INTL & COMP. L. 109.
31
Wilfried E. Rumble (Ed.), John Austin : The Province of Jurisprudence Determined, (CUP, New York 1999).
32
Peter Lalett (Ed.), John Locke: Two Treatises of Government, (CUP, Cambridge 1988).
33
William S. Blatt, “The History of Statutory Interpretation: A Study in Form and Substance”, (1985)
6 CARDOZO L. REV. 799.
25 | P a g e
an instrument intended to protect and safeguard the Constitution and judges for that reason
are aptly called “the watchdogs of the Constitution”.
8. Judicial law-making is concerned with and essentially restricted to interpretation of the

Constitution and the laws and conflict with the legislature becomes inevitable
when judicial law-making transgresses such limits. Judiciary participates in the governance
of the country by ensuring that such governance is in accordance with the Constitution and
the laws made thereunder. Judicial law-making cannot replace legislation and skirmishes
related to routine and mundane matters (such as making or framing of service rules and
regulations in the course of day-to-day administration of government affairs) are most
unfortunate — vide S.S. Bola v. B.D. Sardana34 per K. Ramaswamy, J.
9. Judicial law-making is not expected to interfere with legislation which is enacted/framed

by a vast body constitutionally constituted, having its own peculiar problems of
administration. It stands to reason that exercise of judicial law-making liberally would
amount to interference in administration, which would possibly provoke frequent
amendments to the Constitution (Article 368) and may even adversely affect the stability
of the Constitution and the day-to-day administration of the country.
10. Judicial law-making causes great imbalances in our constitutional structure that challenges
the representative foundations of our democratic polity. However, the criticism
of judicial legislation is based on two basic assumptions that judges can validly
interpret law but not make law and still ensure that justice is done to all the parties in the
case and also that the rights of a particular individual should be subject to the opinion of
the majority of people and what rights they want. Also those arguments assume that the
laws are enacted in ways that do not leave gaps or voids to be filled by judges and do not
take into consideration the institutional inefficiencies in our representative democratic
system.
11. Judicial law-making per se can be said to be violative of the rule of separation of power
and the judiciary cannot embark upon itself the role of a duly elected legislature which
represents the very democratic basis of the structure of our Constitution and legal order.
34
S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522.
26 | P a g e
PRAYER
Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities
cited, the Respondents most humbly and respectfully plead the Hon’ble Supreme Court to:
1. Dismiss the Petition and Declare that it is not feasible to implement UCC in a country
like Aryavart
2. Declare that the implementation of UCC will lead to violation of one’s fundamental
rights guaranteed under the constitution of Aryavart
3. Declare that the non-issuance of the birth certificate for a child born from an LGBTQ
couple is not violation of the child’s rights by the state
4. Declare that the constitutional power of court to frame laws has led to the scenario
where legislature have become the executive wing of the judiciary
AND/OR
Pass any other order that it deems fit in the interest 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 Respondent shall duly bound forever pray.
Most respectfully submitted,
NSL 11
[THE COUNSEL FOR RESPONDENTS]
27 | P a g e

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2ND DEO MANGAL MEMORIAL NATIONAL MOOT

IN THE HON’BLE SUPREME COURT OF ARYAVRAT

PUBLIC INTEREST LITIGATION

WRIT PETITION NO. 2119 OF 2023

UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVRAT

In The Matter Between

SAMRIDHI AND OTHERS ….....Petitioner

UNION OF ARYAVRAT ……..Respondent

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF ARYAVRAT

-MEMORANDUM ON BEHALF OF THE RESPONDENT-

Sl. No. Topic Title Page No.

ISSUE 01: WHETHER THE PIL IS MAINTANABLE IN THE 13

Sl.No. Abbreviation Description

7. COA Constitution of Aryavrat

10. LGBTQ Lesbian, Gay, Bisexual, Transgender and Queer

11. PIL Public Interest Litigation

12. DPSP Directive Principles of State Policy

13. NGO Non-governmental organisation

14. Govt Government

15. SCC Supreme Court Cases

16. SCR Supreme Court Reporter

17. UOI Union of India

18. Vol. Volume

20. W.P. Writ Petition

20. Reema Aggarwal v. Anupam (2004) 3 SCC 199.

26. Sunil Poddar v. Union Bank of India (2008) 2 SCC 326.

II. STATUTES REFERRED:

Sl. No. Statute Name

III. DICTIONARIES AND BOOKS/JOURNALS REFERRED:

1. A.R KHAN, THE CONSTITUTION OF INDIA (2d ed. 2014).

2. DD BASU, CONSTITUTIONAL OF INDIA, (7h ed. 1998).

3. DD BASU, SHORTER CONSTITUTION OF INDIA, (13h ed. 2001).

4. HM SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4h ed. 1996).

5. M P JAIN, INDIAN CONSTITUTIONAL LAW (7h ed. 2014).

6. P.M. BAKSHI, THE CONSTITUTION OF INDIA (14h ed. 2017).

IV. ELECTRONIC/ONLINE SOURCES:

“32. Remedies for enforcement of rights conferred by this Part

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

2. Mrinal, who is a Hindu trans-man, is in a relationship with Akram who is a Muslim

6. The All-Indus Muslim Personal Law Board is opposing Implementation of Uniform

I. WHETHER THE PIL IS MAINTANABLE IN THE SUPREME COURT OF

II. WHETHER UCC IS VIOLATIVE OF ONE’S FUNDAMENTAL RIGHTS AND

IV. WHETHER THE CONSTITUTIONAL POWER OF COURT TO FRAME LAWS

I. WHETHER THE WRIT PETITION BROUGHT BEFORE THE HON’BLE

II. WHETHER UCC IS VIOLATIVE OF ONE’S FUNDAMENTAL RIGHTS AND

It is Humbly submitted that Implementation of UCC leads to violation of ones

IV. WHETHER THE CONSTITUTIONAL POWER OF COURT TO FRAME

It is Humbly submitted that Judicial law-making per se can be said to be violative of

[A]. THE PETITIONER HAS NOT EXHAUSTED ALTERNATIVE REMEDIES

9. Within the constitutional framework of India, a fundamental cornerstone is the assurance

ISSUE 02. WHETHER UCC IS VIOLATIVE OF ONE’S FUNDAMENTAL RIGHTS

[A]. ALL INDUS MUSLIM PERSONAL LAWS BOARD’S CONTENTION

[B]. CONTENTION RAISED AGAINST IMPLEMENTATION OF UNIFORM CIVIL

6. Article 19(1)(a) of the Indian Constitution safeguards the freedom of expression,

ISSUE 04. WHETHER THE CONSTITUTIONAL POWER OF COURT TO FRAME

[A]. JUDICIAL LEGISLATION IS VIOLATIVE OF SEPARATION OF

4. Even in Bachan Singh v. State of Punjab26 a five-Judge Bench headed by Y.V.

8. Judicial law-making is concerned with and essentially restricted to interpretation of the

9. Judicial law-making is not expected to interfere with legislation which is enacted/framed