2nd Deo Mangal Memorial National Moot Court Competition, 2023

NSL-06-P
Original
2nd Deo WritMangal
JurisdictionMemorial
PUBLIC INTEREST LITIGATION
National Moot Court Competition, 2023
___________________________________________________________________________________________

BEFORE THE HON’BLE SUPREME COURT OF JUDICATURE

AT ARYAVART

___________________________________________________________________________________________

Writ Petition. No. ______ / 2023

IN THE MATTER OF:

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

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

-AND-

Writ Petition. No. ______ / 2023

IN THE MATTER OF:

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

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

-AND-

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

FILED UNDER ARTICLE 32

OF THE CONSTITUTION OF ARYAVART, 1950
__________________________________________________________________________________________

-MEMORANDUM FILED ON BEHALF OF THE PETITIONERS-

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

Sl. No. Topic Title Page No.

1. Cover Page 1
2. Table of Contents 2
3. Index of Authorities 3-6
4. List of Abbreviations 7
5. Statement of Jurisdiction 8
6. Statement of Facts 9-10
7. Issues Raised 11
8. Summary of Arguments 12-13
9. Arguments Advanced 14-34
ISSUE 01: Whether the Public Interest Litigation is 14-19
maintainable in the Supreme Court of Aryavart and whether the
Impleading Application by the All Indus Muslim Personal Law
Board is maintainable before this Hon’ble Court?
ISSUE 02: Whether Uniform Civil Code is violative of one’s’ 19-23
Fundamental Rights and other Personal Rights guaranteed
under the Constitution of Aryavart and is it the States’s
interference in the realm of the personal laws of the subjects?
ISSUE 03: Whether the non-issuance of the Birth Certificate for 23-29
the child born from a LGBTQIA couple is violation of the
Child’s right by the State?
ISSUE 04: Whether the Constitutional power of Court to frame 29-34
laws has led to the scenario where Legislature have become the
Executive wing of the Judiciary?
10. Prayer 35

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INDEX OF AUTHORITIES

BIBLIOGRAPHICAL INFORMATION

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

1. Albert Anthony v. Union of India. W.P. (C) No. 127/2015.

2. Bugdaycay. [1987] AC 514
3. Calcutta Gas Co. Ltd. v. The State of West Bengal. AIR 1962 SC 1044.
4. CCI v. SAIL. (2010) 10 SCC 744.
5. D.A.V. College v. State of Punjab. AIR 1971 SC 1731.
6. Daryao v. The State of Uttar Pradesh. AIR 1961 SC 1457
7. Fertilizer Corporation Kamagar Union (Regd.), Sindri 1981 AIR 344, 1981
& Ors. v. Union of India & Ors. SCR (2) 52.
8. HarbansalSahnia v. Indian Oil Corporation Ltd. AIR 2003 SC 2120.
9. In Re, Smt. Amina v. Unknown. AIR 1992 Bom 214.
10. Independent Thought v. Union of India. SC W.P.(C) 382/2013.
11. Indra Sarma v. V.K.V.Sarma. AIR 2014 SC 309.

12. Janata Dal v. H.S. Chowdhary and Ors. AIR 1993 SC 892.
13. John Vallamatton v. Union of India. AIR 2003 SC 2902.
14. Jose Paulo Coutinho v. Maria Luiza Valentina Pereira. SC Civil Appeal No.
7378 of 2010.
15. Joseph Shine v. Union of India. (2019) 3 SCC 39 : AIR
2018 SC 4898.
16. K.K. Kouchunni v. State of Madras. AIR 1959 SC 725.
17. Kanubhai Brahmbhatt v. State of Gujarat. AIR 1987 SC 1159.
18. Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh. 1965 SCR (1) 375.
19. Kasturi v. Iyyamperumal. (2005) 6 SCC 733.
20. Kharak Singh v. State of Uttar Pradesh. AIR 1963 SC 1295.
21. Krishna Singh v. Mathura Ahir. 1980 SCR (2) 660.

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22. M.D.R. v. Ontario. [2006] O.R. 3d 81, para.

216 (Can. Ont. Sup. Ct.
J.).
23. Madhu Kishwar v. State of Bihar. 1996 SCC (5) 125.
24. Maganbhai v. Union of India. AIR 1969 SC 783.
25. MC Mehta v. Union of India. AIR 1987 SC 1086.
26. Mikulic v. Croatia. 2001-I Eur. Ct. H.R. 141
27. Mohammed Ahmed Khan v. Shah Bano Begum. (1985) 2 SCC 556.
28. Mohammed Ishaq v. S. Kazam Pasha. 2010 (1) SCC (Cri.) 721.
29. Ms. Jorden Diengdeh v. S.S. Chopra. (1985) 3 SCC 62.
30. Mumbai International Airport v. Regency Convention (2010) 7 SCC 417.
Centre.
31. NALSA v. Union of India. (2014) SCC 438.
32. Naresh Shridhar Mirajkar v. State of Maharashtra. AIR 1967 SC 1.
33. National Legal services Authority of India v. Union of 2014 INSC 275
India.
34. Navtej Singh Johar v. Union of India. 2018 INSC 790.
35. Naz Foundation v. Govt. of NCT of Delhi. 2010 CrLJ 94 Del. (DB).
36. Nilabati Behera v. State of Orissa. AIR 1993 SC 1960
37. P. N. Kumar v. Municipal Corporation of Delhi. (1987) 4 SCC 609.
38. P.Ramachandra Rao v. the State of Karnataka. JT 2002 (4) SC 92
39. Prem Chand Garg v. Excise Commissioner. AIR 1963 SC 996.
40. Queen’s Bench Division in Amon v. Raphael Tuck & (1956) 1 All E.R. 273.
Sons Ltd.
41. Ral Patil and Anr. v. Union of India. Appeal (civil) 4730 of
1999.
42. Ram Jawaya v. The State of Punjab. AIR 1955 SC 549 : 1955
2 SCR 225.
43. Ramesh Hirachand Kundanmal v. Municipal 1992 (2) SCC 524.
Corporation of Greater Bombay.
44. Romesh Thappar v. The State of Madras. AIR 1950 SC 124.
45. Roop Chand v. State of Punjab. AIR 1963 SC 1503.
46. Rudul Shah v. State of Bihar. (1983) 4 SCC 141.

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47. S. Khushboo v. Kanniammal & Anr. (2010) 5 SCC 600.

48. Sahibzada Saiyed Muhammed Amirabbas Abbasi v. AIR 1960 SC 768
The State of Madhya Bharat.
49. Sant Ram v. Labh Singh. AIR 1965 SC 166.
50. Sarla Mudgal v. Union of India. AIR 1995 SC 1531.
51. Sonny Gerry v. Gerry Douglas. 2 SCC 197 (2018).
52. State of Bombay v. Narasu Appa Mali. AIR 1952 Bom 84.
53. State of Bombay v. United Motors Ltd. AIR 1953 SC 252.
54. State of Uttar Pradesh v. Mohammad Nooh. AIR 1958 SC 86.
55. Tilokchand Motichand v. H.B. Munshi. AIR 1970 SC 898.
56. Union of India v. Paul Manickam. AIR 2003 SC 4622.
57. Vidur Impex v. Tosh Apartments. (2012) 8 SCC 384.

II. INDIAN & INTERNATIONAL LAWS REFERRED:

Sl. No. Statute Name Sections/Articles/Clauses
referred
1. The Constitution of India, 1950. Article 15, 25, 32, 44, 50.
2. The Code of Civil Procedure, 1908. Order 1 Rule 10.

III. DICTIONARIES AND BOOKS/JOURNALS REFERRED:

Sl. No. Dictionary/ Book/Journal

1. Bhakshi.P, The Constitution of India Bare Act, Universal Law Publishers (2023).
2. Black Law’s Dictionary, 9th Edition.
3. Dr. M.P. Singh “Uniform Civil Code- A never ending dilemma in India” edited
by Dr. Sarfaraz Ahmed Khan and Ahmar Afaq.

4. Merriam-Webster Law Dictionary.

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

IV. ELECTRONIC/ONLINE SOURCES:

1. http://supremeCourtofindia.nic.in
2. http://www.advocatekhoj.com

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

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LIST OF ABBREVIATIONS

Sl.No. Abbreviation Description

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

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STATEMENT OF JURISDICTION

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

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

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other Court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

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

The present memorandum sets forth the facts, contentions, and arguments in the present case.
The petitioners humbly submit to the jurisdiction of this Honourable Court.

1
INDIA CONST. art. 32.

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STATEMENT OF FACTS

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

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

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

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

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ISSUES RAISED

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

1.1.Whether the PILs have locus standi?

1.2.Whether the PILs are Pro bono Publico?
1.3.Whether the Petitioners have exhausted the Alternative Remedies available?
1.4.Whether the Impleading Applications filed by All-Indus Muslim Personal Law Board is
maintainable?

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

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

3.1. Whether the issuance of Birth Certificate is obligatory by the State?

3.2.Whether the act of the State has infringed the rights of LGBTQIA community?

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?

4.1. Whether the Constitutional power of Court is overlapping power of judiciary with the other
two organs?
4.2. Whether the Judicial legislation is antithetical?

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SUMMARY OF ARGUMENTS

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

The instant petition is maintainable under Article 32 of the Constitution since: first, the
fundamental right under Article 32 is not qualified by the existence of any other local or
alternative remedies; second, the cases that impose a rule of exhaustion of local remedies are
not binding upon this Court and finally, there is a Constitutional obligation on this Court to
protect fundamental rights. In any case, the alternative remedies are not equally efficacious.
The petitioner most humbly submits that the petition filed under Article 32 of the Constitution
is maintainable as a Public Interest Litigation, which has been filed with the apprehension of
violation of Fundamental Rights of the LGBTQIA and the Muslim women communities,
enshrined under Part III of the Constitution. The Petitioners humbly opposes the Impleading
of the All-Indus Muslim Personal Law Board into this case as they are not necessary parties to
the proceedings.

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

The counsels for Petitioners humbly contend that the Uniform Civil Code is not violative of
one’s’ Fundamental rights and other personal rights guaranteed under the Constitution of
Aryavart and it is not the States’s interference in the realm of the personal laws of the subjects.
Uniform Civil Code in a country ensures a sense of Unity and helps to maintain a better
National Integration. It is an essence of Secularism. Hence, the Uniform Civil Code must be
enacted to remove the clash of all religious laws and likewise.

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

The counsels for the Petitioners humbly contend before this Hon’ble Supreme Court that 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. Birth certificates provide individuals with an identity, both in
the practical and abstract sense. Birth certificates afford an individual with legal proof of
identity, which is essential for many day-to-day activities. In a report on identity fraud, the
United States Department of Health and Human Services observed, “[A] birth certificate issued
in the States is the key to opening many doors in our society-from citizenship privileges to
Social Security benefits. Such certificates can then be used as ‘breeder’ documents to obtain
driver's licenses, pass- ports, Social Security cards or other documents.”

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?

The Constitutional power of Court to frame laws has not led to any scenario where Legislature
have become the Executive wing of the Judiciary. The legislature often fails to keep pace with
the changing needs and values nor is it realistic to expect that it will have provided for all
contingencies and eventualities. It is, therefore, not only necessary but obligatory on the Courts
to step in to fill the lacuna. In such situations, the directions issued by the higher judiciary, to
fill the vacuum until the legislature enacts substantive law is also a constitutional prerogative
to meet the ends of the justice. Hence to meet the needs of society, the Judges do make law and
it is now recognised everywhere.

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ARGUMENTS ADVANCED

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

The counsels for Petitioners humbly contend before this Hon’ble Supreme Court that the PILs
filed are maintainable.

1. It is humbly submitted that Articles 38 and 39A of the Constitution of Aryavart2 persuade
the State to ensure social justice. Since these are a part of Directive Principles of State
Policy of The Constitution, these are not binding on this Hon’ble Court. But these are the
persuasive factors for the Hon’ble Court to admit this PIL. The Writ Petitions have rightly
been filed against the authorities that fall under the definition of ‘State’ in Article 12 of
our Constitution.

2. It is humbly submitted that the PILs can be maintained after inspecting the following sub-
issues:
1.1. Whether the PILs have locus standi?
1.2. Whether the PILs are Pro bono Publico?
1.3. Whether the Petitioners have exhausted the Alternative Remedies available?
1.4. Whether the Impleading Applications filed by All-Indus Muslim personal Law Board
is maintainable?

1.1.Whether the PILs have locus standi?

3. It is humbly submitted that the Black’s Law Dictionary defines Public Interest as:
“Something in which the public, the community at large, has some pecuniary interest, or
some interest by which their legal rights or liabilities are affected. It does not mean
anything so narrow as mere curiosity, or as the interests of the particular localities, which
may be affected by the matters in question. Interest shared by citizens generally in affairs

2
INDIA CONST. Part IV of the Constitution of Aryavart pari materia to the Constitution of India.

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of local, state or national Government.”3 The word ‘litigation’ means a legal action,
including all legal proceedings initiated in a Court of law with the purpose of enforcing a
right or seeking a remedy.

4. It is humbly submitted that the locus standi is a right to appear in a Court or before
anybody on a given question: a right to be heard. 4 The counsel for Petitioners humbly
seeks to answer this in affirmative in the context of the instant case.

5. It is humbly submitted that to invoke the writ jurisdiction of the Supreme Court is not
necessary that the fundamental right must have been actually infringed- a threat to the same
would be sufficient.5 Applying the doctrine of ‘Reasonable Apprehension’, this Hon’ble
Court may interfere directly in the said case. The most fundamental right of an individual
is his right to life; if an administrative decision may put his life at risk, the basis for the
decision surely calls for the most anxious scrutiny according to the principle of ‘anxious
scrutiny’6. Thus, the petitions filed before this apex Court are maintainable.

6. It is humbly submitted that as seen in Janata Dal v. H.S. Chowdhary,

“It is thus clear that only a person acting bona fide and having sufficient interest in the
proceeding of PIL will alone have a locus standi and can approach the Court to wipe out
the tears of poor and needy, suffering from violation of their fundamental rights, but not a
person for personal gain or private profit or political motive or any oblique
consideration.”7
In the instant case, Mrinal and Akram have sufficient interest in the case and also their
contentions would wipe out the tears of the needy community of the LGBTQ+ at large.
Hence, their PIL is maintainable.

7. It is humbly submitted that this Hon’ble Court do “Complete Justice” as stated in Article
142 of the Constitution. Allowing this petition will do justice to the moral and legal
standards of the society, and hence this PIL must be maintained as such.

1.2.Whether the PILs are Pro bono Publico?

3
Garner B.A., Black’s Law Dictionary, (9th ed., 2009).
4
Merriam-webster dictionary (2018).
5
Roop Chand v. State of Punjab, AIR 1963 SC 1503; also see: Maganbhai v. Union of India, AIR 1969 SC 783;
D.A.V. College v. State of Punjab, AIR 1971 SC 1731.
6
Bugdaycay, [1987] AC 514, where Lord Bridge said at 531E-G.
7
Janata Dal v. H.S. Chowdhary and Ors., AIR 1993 SC 892.

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8. It is humbly submitted that the term Pro bono Publico8 means for the public good; for the
welfare of the whole. It is humbly submitted that the Constitutional obligation of this
Hon'ble Court as the guarantor of fundamental rights has been interpreted broadly9 and as
one that exists independent of any other remedy that may be available10. This is particularly
true in cases of grave public importance, such as Sedition where relief may not be denied
on mere technical grounds. Consequently, it is submitted that a refusal to entertain the
instant petition would be inconsistent with the aforesaid obligation11.

9. It is humbly submitted that a PIL can be filed in the interest of the LGBT community as
seen in Fertilizer Corporation Kamagar Union (Regd.), Sindri and Ors. v. Union of India
and Ors:
“The purpose of PIL is to promote the public interest which mandates that violation of
legal or constitutional rights of a large number of persons, poor, downtrodden, ignorant,
socially or economically disadvantaged should not go un-redressed. The Court can take
cognizance in PIL when there are complaints which shocks the judicial conscience. PIL is
Pro Bono Publico and should not smack of any ulterior motive and no person has a right
to achieve any ulterior purpose through such litigations.” 12
In the instant case, Mrinal and Akram are representing the LGBTQIA+ community as a
whole before this Hon’ble Judiciary. This community is facing a lot of social oppression
and is thus socially and legally disadvantaged. Thus, the PIL is maintainable.

1.3.Whether the Petitioners have exhausted the Alternative Remedies available?

The counsels for the Petitioners humbly seek to answer the above in affirmative statements.

10. It is humbly submitted that the right under Article 32 is not subject to the exhaustion of
local remedies: The right to approach this Hon'ble Court in case of violation of
Fundamental Rights is itself a Fundamental Right enshrined in Article 32.13 In Prem Chand
Garg v. Excise Commissioner, it was held that this right is absolute and may not be

8
Black’s Law Dictionary (2019)
9
MC Mehta v. Union of India, AIR 1987 SC 1086.
10
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960; Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC
1295.
11
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 129; Romesh Thappar v. The State of Madras, AIR 1950
SC 124.
12
Fertilizer Corporation Kamagar Union (Regd.), Sindri & Ors. v. Union of India & Ors., 1981 SCR (2) 52.
13
INDIA CONST, Part III Art. 32 (1950).

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impaired on any ground. 14 Further, unlike in Article 226, the remedy provided by Article
32 is a Fundamental Right and not merely a discretionary power of the Court.15 Moreover,
this Hon’ble Court has on multiple occasions expressly rejected an argument that called for
exhaustion of local remedies. Therefore, it submitted that it is not open to this Court to
carve out exceptions when there are none in the text.

11. It is humbly submitted that furthermore, judicial orders are not amenable to Writ
Jurisdiction under Article 32.16 Consequently, if a violation of Article 32 takes place by
this Court's rejection of the instant petition, the petitioners will have absolutely no remedy
for such violation of their fundamental right. Hence, the Petitioner submits that a liberal
approach should be adopted, erring on the side of caution, in cases where the Court rejects
a petition under Article 32.

12. It is humbly submitted that the rule of exhaustion of local remedies is not binding on this
Hon'ble Court: Admittedly, cases such as Union of India v. Paul Manickam17, Kanubhai
Brahmbhatt v. State of Gujarat18, and P.N. Kumar v. Municipal Corporation of Delhi19
require the exhaustion of local remedies before approaching the Court under Article 32.
However, it is submitted that this Hon’ble Court must not be constrained by these decisions
for the following reasons: First, this self-imposed restraint is merely a rule of convenience
and discretion20 and does not oust the jurisdiction of this Court under Article 32.21
Secondly, these cases are per incuriam as they were rendered in ignorance of previous
decisions by higher benches of this Hon’ble Court that expressly rejected such a rule.
Finally, Article 32(4) specifically provides that this right may not be suspended except by
a constitutional provision22. A rule of self-imposed restraint by the judiciary that requires
exhaustion of local remedies constitutes an extra-constitutional partial suspension and is
therefore, unconstitutional.

14
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
15
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457; also see: Tilokchand Motichand v. H.B. Munshi,
AIR 1970 SC 898.
16
Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR 1960 SC 768; Naresh
Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
17
Union of India v. Paul Manickam, AIR 2003 SC 4622.
18
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
19
P. N. Kumar v. Municipal Corporation of Delhi, (1987) 4 SCC 609.
20
State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86.
21
Mohammed Ishaq v. S. Kazam Pasha, 2010 (1) SCC (Cri.) 721.
22
INDIA CONST. art. 32(4).

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13. It is humbly submitted that where there is well-founded allegation that fundamental right
has been infringed alternative remedy is no bar for entertaining writ petition and granting
relief.23 The mere existence of an adequate alternative legal remedy cannot per se be a good
and sufficient ground for throwing out a petition under Article 32 if the existence of a
fundamental right and a breach, actual or threatened, of such right and is alleged is prima
facie established on the petition24. In spite of availability of the alternative remedy, the
Court may exercise its writ jurisdiction in at least petitions where the petitioner seeks
enforcement of any of the fundamental rights25. Thus, the petitioner humbly submits that
writ petition is maintainable as existence of alternative remedy is not a bar.

14. It is humbly submitted that there are no provisions applicable where the Petitioners in this
instant case could approach any other Tribunal or a Court. Hence, they have directly
approached this Hon’ble Apex Court and have invoked its Original Jurisdiction. Hence,
these PILs filed by the trans-couple and the NGO are contended to be maintainable.

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

15. It is humbly submitted that the Impleading Application filed by the All Indus Muslim
Personal Law Board under Order 1 Rule 10 of the Code of Civil Procedure, 1908 is not
maintainable before this Hon’ble Court. Though a person who is not a party has no right
to be impleaded against the wishes of the plaintiff unless it is a compulsion of the Rule of
Law or unless a party proposed to be added has a direct and legal interest in the controversy
involved in the suit. This ratio was stated and re-iterated by the Apex Court in its number
of judgements like Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater
Bombay26, Kasturi v. Iyyamperumal27, Mumbai International Airport v. Regency
Convention Centre28.

16. It is humbly submitted that in Calcutta Gas Co. Ltd. v. The State of West Bengal it was
held that “when a person acquires a Locus Standi, he has to have a personal or Individual

23
State of Bombay v. United Motors Ltd., AIR 1953 SC 252.
24
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.
25
HarbansalSahnia v. Indian Oil Corporation Ltd., AIR 2003 SC 2120.
26
Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, 1992 (2) SCC 524.
27
Kasturi v. Iyyamperumal, (2005) 6 SCC 733.
28
Mumbai International Airport v. Regency Convention Centre, (2010) 7 SCC 417.

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Right which was violated or threatened to be violated”. 29 In the instant case, the All Indus
Muslim Personal Law Board doesn’t have any threat to the existence of their organisation
nor to its members from the action of the government. Hence, they cannot be impleaded
into the PIL.

17. It is humbly submitted that in Queen’s Bench Division in Amon v. Raphael Tuck & Sons
Ltd., the learned Judge Delvin J held that ‘it was not enough that the intervener was
commercially or indirectly interested, he must be directly or legally interested.’30A person
is legally interested in the question involved in the suit, only if he can say that it may lead
to a result that may affect him legally, that is, by curtailing his legal rights. The Muslim
Personal Law Board, in this case, has not even indirect interest in the suit.

18. It is humbly submitted that the discretion of the Court under Order I Rule 10 (2) of Code
of Civil Procedure, 1908 is limited. It is only if a party is a necessary or a proper party that
they can be directed by the Court to be joined in the proceeding. If a person is not found
to be a necessary or proper party, the Court has no jurisdiction to order impleadment
against the wishes of the plaintiff.31 The Court is therefore duly bound to arrive at a
conclusion that a party is a necessary party or proper party before it can pass an order
directing impleadment contrary to the plaintiff’s wishes. The discretion to either allow or
reject an application for impleadment of a party is required to be exercised according to
the settled principles of law and according to reason and fair play.32

19. It is humbly submitted that in our instant case, the All Indus Muslim Personal Law Board
has no right to be impleaded against the wishes of the plaintiff and there is no compulsion
of the Rule of Law nor do they have any legal interest in the controversy involved in the
suit. The Board is just trying to waste the precious time of this Court with their frivolous
Application. Hence their Impleading Application must not be allowed by this Hon’ble
Court.

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

29
Calcutta Gas Co. Ltd. v. The State of West Bengal, AIR 1962 SC 1044.
30
Queen’s Bench Division in Amon v. Raphael Tuck & Sons Ltd. (1956) 1 All E.R. 273.
31
Vidur Impex v. Tosh Apartments, (2012) 8 SCC 384.
32
Mumbai International Airport v. Regency Convention Centre, (supra), CCI v. SAIL, (2010) 10 SCC 744.

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The counsels for petitioners humbly contend before this Hon’ble Supreme Court that the
Uniform Civil Code is not violative of one’s’ fundamental and personal rights and must be
implemented throughout the territory of Aryavart on the following grounds.

20. It is humbly submitted that Article 44 of the Constitution states that, “The State shall
endeavour to secure for the citizens a uniform civil code throughout the territory of
India.” Although Article 37 of the Constitution itself makes it clear the Directive
Principles of State Policy “shall not be enforceable by any Court”, yet they are
“fundamental in the governance of the country”.

21. It is humbly submitted that this Hon’ble Supreme Court while hearing the validity of
Section 118 of the Indian Succession Act in John Vallamatton v. Union of India, once
again expressed regret for the non-enactment of the Common Civil Code. The then
Hon’ble Chief Justice V.N. Khare forcefully reiterated the view that the Common Civil
Code must be enacted. In his words, “Article 44 is based on the premise that there is no
necessary connection between religion and personal law in a civilised society”. 33

22. It is humbly submitted that the petitioners’ contention is that, with the enactment of a
Uniform Civil Code, Secularism will be strengthened; much of the present-day separation
and divisiveness between the various religious groups in the country will disappear, and
Aryavart will emerge as more cohesive and integrated nation. It is necessary that law be
divorced from religion. The Supreme Court has emphasized that steps be initiated to enact
a Uniform Civil Code as envisaged by Article 44. Reviewing the various laws prevailing
in the area of marriage in India, the Court has said in Ms. Jorden Diengdeh v. S.S. Chopra:
“…the law relating to judicial separation, divorce and nullity of marriage is far, far from
uniform. Surely the time has now come for a complete reform of the law of marriage and
make a uniform law applicable to all people irrespective of religion or caste. We suggest
that the time has come for the intervention of the legislature in these matters to provide for
uniform code of marriage and divorce…”34

23. It is humbly submitted that yet in another case, Mohammed Ahmed Khan v. Shah Bano
Begum, the SC has regretted that Article 44 has remained a “dead letter” as there is “no
evidence of any official activity for framing a common civil code for the country”. The

33
John Vallamatton v. Union of India, AIR 2003 SC 2902.
34
Ms. Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62.

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Court has emphasized: “A common civil code will help the cause of national integration
by removing disparate loyalties to laws which have conflicting ideologies.” The Court has
said, “a beginning has to be made if the Constitution is to have any meaning. It is the State
which is charged with the duty of securing a Uniform Civil Code for the citizens of the
country and, unquestionably, it has the legislative competence to do so.”35 To take a few
examples, reference may be made in this connection to Madhu Kishwar v. State of
Bihar36.

24. It is humbly submitted that the Court has again reiterated its views on the need to have a
Uniform Civil Code in the country. The Court has emphasized in Sarla Mudgal v. Union
of India, that Article 44 is based on the concept that there is no necessary relation between
religion and personal law in a civilised society.37 Article 25 guarantees religious freedom
whereas Article 44 seeks to divest religion from social relations and personal law.
Marriage, succession and like matters of a secular character cannot be brought within the
guarantee enshrined in Articles 25, 26 and 27. The Hindu law, though of a sacramental
origin, has been secularised. The Court has pointed out that successive governments in
India till-date have been wholly remiss in their duty of implementing the Constitutional
mandate under Article 44. Accordingly, the Court has again urged the Government of India
to have a fresh look at Article 44 and “endeavour to secure for the citizens a uniform civil
code throughout the territory of India.” The Court has continued to emphasize that a
common civil code will help the cause of national integration by removing the
contradictions based on ideologies.38

25. It is humbly submitted that In Re, Smt. Amina v. Unknown39, Shanuka, J., observed that
the decision in the State of Bombay v. Narasu Appa Mali40 case is improper and the
concurring decision of the Supreme Court in Krishna Singh v. Mathura Ahir case does
not constitute a declared law under Article 141.41 He notes that how it is that customary
law, which forms the source of personal law, is covered by Article 13 but it does not cover
personal law. In Sant Ram v. Labh Singh, Hidayatullah, J., noted that, “Custom and usage
having in the territory of India the force of law are included in the expression ‘all laws in

35
Mohammed Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
36
Madhu Kishwar v. State of Bihar, 1996 SCC (5) 125.
37
Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
38
John Vallamatton v. Union of India, (2003) 6 SCC 611 at page 627.
39
In Re, Smt. Amina v. Unknown, AIR 1992 Bom 214.
40
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
41
Krishna Singh v. Mathura Ahir, 1980 SCR (2) 660.

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force’”. 42 Hence, though this it is proved that the personal laws can be legislated into the
Uniform Civil Code and the State’s interference in the realm of personal laws is absolutely
valid.

26. It is humbly submitted that Sri KM Munshi, Member of the Drafting Committee, opposing
the contention that Uniform Civil Code will silence the voice of minorities explained
through the arguments that “the enactment of a civil code would not be tyrannical to the
minorities. But nowhere in advanced Muslim countries the personal law of each minority
has been recognised as sacrosanct as to prevent the enactment of a civil code. In support
he gave examples of Turkey and Egypt which have made uniform civil law without any
regard to minorities, he also gave the example of the Shariat Act of 1937 enacted by the
Central Legislature in the British regime by which the Khojas and Cutchi Memons who
followed many customs of Hindus had to give up their dissatisfaction with the Act.”43
It is humbly submitted that inspiration can be drawn from the State of Kankan, which has
retained the Portuguese Civil Code as its Uniform Civil Code till date. Non-implementation
of Uniform Civil Code is a burden on the legal fraternity to apply multiple laws on the same
issues. This will also cause multiplicity of cases in the Courts.

27. It is humbly submitted that in the decision of the Kenyan High Court in Letsweletse
Motshidiemang v. Attorney General, High Court of Botswana, as a preliminary point, the
judgment stands out for its clear endorsement of the value of pluralism, and the necessity
of respecting diverse ways of being and lite choices, which the Court defined as
inclusiveness form. 44 Pluralism and inclusiveness were also two words that were at the
heart of the Delhi High Court's 2009 judgment in Naz Foundation v. Govt. of NCT of
Delhi45; Hence the Uniform Civil Code must be implemented to include the LGBT+
community in the mainstream society.

28. It is humbly submitted that in 2015, while adjudicating upon the constitutionality of Section
10A of the Divorce Act, Vikramajit Sen., J., asked the government to take a quick decision
on the Uniform Civil Code to end the confusion over personal law46. Even in 2019, as the
Supreme Court lauded Goa for being a shining example of a functional Uniform Civil Code
regardless of religion it ultimately works only as a reminder that till date no action has been

42
Sant Ram v. Labh Singh, AIR 1965 SC 166.
43
Constituent Assembly Debates, Vol. VII, 547-48.
44
Letsweletse Motshidiemang v. Attorney General, High Court of Botswana.
45
Naz Foundation v. Govt. of NCT of Delhi 2010 CrLJ 94 Del. (DB).
46
Albert Anthony v. Union of India, W.P. (C) No. 127/2015.

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taken in furtherance of Article 44 for the rest of the country47. Currently, BJP leader
Ashwini Kumar Upadhyaya’s petition on the Uniform Civil Code is pending before the
Delhi High Court which seeks the Court’s directions to the government to install an expert
judicial committee that shall design the implementation of a Uniform Civil Code in the
country in furtherance of gender justice and equality as well as in furtherance of national
integration and unity.

29. It is humbly submitted that there are many laws which are already governing people
irrespective of religion in our country. One such example is the Indian Penal Code. There
are also many Customs and practises which are similar in various religions, for example,
the practise of Fasting is common in both Hindus and Muslims. These such laws relating
to marriage, family and divorce are governed by Personal Laws like The Hindu Marriage
Act, 1955, The Hindu Succession Act, 1956, The Shariat Act, 1937 etc.

30. It is humbly submitted that the Government of Aryavart, which is based out of a
majoritarian religion in the country48, wishes to implement the Uniform Civil Code, which
is its election agenda too. More than 70% of the citizens (i.e., the Hindus) have already
been brought under the codified personal law and there remains no valid grounds to keep
Uniform Civil Code in a limbo anymore. The question is why should the Muslims and other
religions be allowed to have separate religion-based personal laws in a secular country,
hence the implementation of Uniform Civil Code is a need of the hour.

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

The counsels for the Petitioners humbly contend before this Hon’ble Supreme Court that 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.

3.1 Whether the issuance of Birth Certificate is obligatory by the State?

31. It is humbly submitted that a birth certificate is the most visible evidence of respect for
every child’s unique identity. In 2007, In the United Nations Committee on the Rights of

47
Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, SC Civil Appeal No. 7378 of 2010.
48
Para 11 of the Moot proposition.

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the Child published General Comment 10 on Juvenile Justice.49 This commentary provided
insight into the role that birth certificates play in the realization of children's rights: the
Committee explicitly characterized birth certificates not only as a fundamental component
of birth registration, but also as a means through which other rights are realized. Thus, the
Committee recognized that while birth registration is a gateway to certain rights for
children, birth certificates are the key to that gateway.

32. It is humbly submitted that birth certificates offer an official record of lineage, which can
be important for issues of inheritance. The connection between registration and property
was espoused by Matthews in the nineteenth century, when he said that "it appears to me
to be fully as necessary for the preservation of the titles and rights of individuals, to preserve
a register of births, marriages, and deaths, as it is to preserve a register of deeds." 50 Thus,
individual property rights are essential to the concept of both birth registration and
certificates.

33. It is humbly submitted that birth certificates also provide individuals with an identity, both
in the practical and abstract sense. Birth certificates afford an individual with legal proof
of identity, which is essential for many day-to-day activities. In a report on identity fraud,
the United States Department of Health and Human Services observed, “[A] birth
certificate issued in the States is the key to opening many doors in our society-from
citizenship privileges to Social Security benefits. Such certificates can then be used as
‘breeder’ documents to obtain driver’s licenses, pass- ports, Social Security cards or other
documents.”51

34. It is humbly submitted that Kertzer and Arel recognize that “literature is lacking on the
relationship between state-enshrined identities on personal documents and collective
identity formation.” However, as the European Court of Human Rights has stated,
“everyone should be able to establish details of their identity as individual human beings.”52
One way to achieve this personal and social sense of identity is through accurate birth
certificates.

35. It is humbly submitted that in some countries, birth certificate is taken for granted as the

49
Comm. On the Rights of the Child, General Comment No.10 : Children’s Rights in Juvenile Justice, U.N. Doc.
CRC/C/GC/10 (Apr. 25, 2007).
50
Registration of Births, supra note 19, at 309.
51
Office Of Inspector Gen, Dep’t of Health & Human Servs., at i.
52
Mikulic v. Croatia, 2001-I Eur. Ct. H.R. 141 (finding a interest in determining the identity of a child’s genetic
parents under the European Convention on Human Rights).

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norm following childbirth. But in too many others, it is a critical step missing to establish
a child’s legal proof of identity. Without it, children are invisible to their governments,
meaning they could miss out on their rights being protected and upheld, as well as essential
services like health care and education.

36. It is humbly submitted that the births of around one quarter of children under the age of 5
worldwide have never been recorded. These children’s lives matter, but they cannot be
protected as governments do not even know their existence.

37. It is humbly submitted that Citizenship in the Constitution is stated as under:

“Citizenship at the commencement of the Constitution.
At the commencement of this Constitution every person who has his domicile in the territory
of India and
a) who was born in the territory of India, or
b) either of whose parents was born in the territory of India, or
c) who has been ordinarily resident in the territory of India for not less than five years
immediately preceding such commencement, shall be a citizen of India.”53
So, such born citizens should be given their registration of their birth and the birth certificate
for the recognition of their identity. Thus, the government cannot deny the issuance of birth
certificate to any of its citizens which leads to violation of the basic right of an individual.

3.2 Whether the act of the state has infringed the rights of LGBTQIA community?

38. It is humbly submitted that India is a progressive country and irrespective of the party in
power, India has been steadily making laws to cater to the changing needs of society. Earlier
dowry was considered a virtuous practice but when it became a menace, we enacted a law
prohibiting giving and taking of dowry, in the form of Dowry Prohibition Act, 1961 and
now, it is no longer a matter of choice between the parties to the marriage. Similarly, even
if a woman wants to sati herself on the pyre of her deceased husband the law restricts her
act by virtue of the Sati (Prevention) Act, 1987. People have the freedom to have as many
children as they want but they cannot have the liberty to have only sons. Female foeticide
is a crime. Women have the freedom to terminate unwanted pregnancy but the decision is
subject to the decision of a competent medical board when the fetus is viable. The sexual
autonomy of minors is restricted by fixing of age of consent.

53
INDIA CONSTI. Art 5.

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39. It is humbly submitted that the aforementioned examples stand testament to State’s
regulation of right to choice. The last decade has witnessed landmark rulings such as
watering down of Section 377 of the IPC to permit consensual homosexuality (Navtej
Singh Johar v. Union of India54), decriminalization of adultery (Joseph Shine v. Union
of India55), making rape of minor wife a crime (Independent thought v. UOI, 2017)56
legitimizing live-in relationships (S. Khushboo v. Kanniammal & Anr57), extending
protection under the Domestic Violence Act, 2005 to women in live-in relationships (Indra
Sarma v. V.K.V. Sarma58) etc.

40. It is humbly submitted that in NALSA v. Union of India, the Supreme Court recognized
persons falling outside the male/female gender binary as third-gender persons and held that
disregarding non-binary gender identities is a breach of fundamental rights guaranteed by
the Constitution of India. The Court observed that right to equality under Article 14 and
freedom of expression under Article 19(1)(a) have been framed in the gender-neutral term
‘persons’. 59 The Court also noted that, discrimination on the ground of “sex” is explicitly
prohibited under articles 15 and 16 and held that “sex” here does not only refer to biological
attributes but also includes “gender” that is based on one’s self-perception. The Court also
interpreted ‘dignity’ under Article 21 of the Constitution to include diversity in self-
expression including gender identity. The State further endorsed this by the enactment of
the Transgender Persons (Protection of Rights) Act, 2019.

41. It is humbly submitted that marriage is a social institution for which the Judiciary may
frame guidelines by virtue of Article 141 and direct the state to deal with such relations as
civil partnerships or contractual agreements to cover issues related to insurance,
maintenance etc. But, they should safeguard against the tendency to tinker with social
institutions.

42. It is humbly submitted that we live in a gendered world and gender fluid marriages will
raise a host of issues related to personal matters and also criminal law. Reading down of
Special Marriage Act will only deal with marriage and divorce, what about other issues. A
gay couple would not be protected under laws meant for married women such as DV Act,

54
Navtej Singh Johar v. Union of India, 2018 INSC 790.
55
Joseph Shine v. Union of India, (2019) 3 SCC 39 : AIR 2018 SC 4898.
56
Independent Thought v. Union of India, 2017 W.P.(C) 382/2013.
57
S. Khushboo v. Kanniammal & Anr, (2010) 5 SCC 600.
58
Indra Sarma v. V.K.V.Sarma, AIR 2014 SC 309.
59
NALSA v. Union of India, (2014) SCC 438.

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Sections 498 A, 376B or 304B of the IPC. And when it comes to relaxing moralities to
encourage choices, it would be a downward spiral with people claiming right to be in
polygamous, polyandrous, incestuous marriages and even seek legalization of bestiality.

43. Birth Certificates for Children with Same-Sex Parents:

“It would help if the government and the law recognized that I have two moms. It would
help more people to understand. It would make my life easier. I want my family to be
accepted and included, just like everybody else's family.” -Affidavit of 12-year-old child
filed in M.D.R. v. Ontario, decided by the Ontario Superior Court of Justice in 200660.

44. It is humbly submitted that cultural changes have created a need for reform of birth
certificates. The multiplicity of family structures in modern society is evidenced by recent
census data. In the United States in 2012, for example, the number of same-sex couples
raising children was more than 110,000, a significant increase from the 2000 census, in
which 63,000 same-sex couples reported that they were raising children.61 In his analysis
of U.S. census data, Professor Gary Gates found that “the geographic data suggest that
many same-sex couples raising children live in states with legal environments that at best
are not supportive and at worst are openly hostile toward LGBT individuals and their
families.”

45. It is humbly submitted that historically, birth certificates have reflected the identity of one
"mother" and one "father." Obviously, this is problematic for children with two parents of
the same gender or with more than two parental figures. Advances in reproductive
technology necessitate a re-examination of the most basic questions of who is a "mother"
and who is a "father," and whether the exclusive use of this terminology is appropriate. A
child may now have two parents of the same gender, for example, where a lesbian couple
uses an anonymous sperm donor. The reality of the child having two mothers and no father
should be reflected on that child's birth certificate.

46. It is humbly submitted that in the present case the transgender couple may choose to have
a child with a known donor, who will assume a father-type role. In this situation, the child
effectively has three parental figures, a practice known as "triparenting." Ultimately,
children's birth certificates should reflect how they see themselves and their families, rather
than contradicting their realities by excluding one or more of their parents because of

60
M.D.R v. Ontario, [2006] O.R. 3d 81, para. 216 (Can. Ont. Sup. Ct. J.).
61
Gary Gates, Family Formation and Raising Children Among Same-Sex Couples, WILLIAMS INST. (Jan 2012).

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terminological restrictions.

47. It is humbly submitted that failing to recognize a child's non-biological parent on his or her
birth certificate has a variety of adverse effects. Discrimination is one key social
implication of states failing to recognize a child's parents on his or her birth certificate.
"Discriminatory parentage (and other family-related) laws are regarded by both those who
support them and those who oppose them as marking out same- sex parented families as
less acceptable or desirable than other families, or even, as not families at all." Rules and
laws that sanction differential treatment of families based on the sexual orientation of
parents are referred to as legislative discrimination.

48. It is humbly submitted that Article 15 of the Constitution of India states that:
“Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public62”

49. It is humbly submitted that in the case of Navtej Singh Johar v. Union of India, the
Supreme Court ruled that the Indian Constitution bans discrimination based on sexual
orientation via the category of “sex”.63 Similarly in the case of National Legal Services
Authority v. Union of India, the Supreme Court held that discrimination on the basis
of gender identity is constitutionally prohibited.64

50. It is humbly submitted that of course, the inclusion of both mothers on a child's birth
certificate is not a panacea. A child may very well still experience discrimination and
stigmatization. However, reforming birth certificates would remove one area of legislative
discrimination and send a clear signal to children with same-sex parents that their families
are recognized by the State, even if some sectors of society do not recognize it.

51. It is humbly submitted that in October 2017, a group of citizens proposed a draft of a new

62
INDIA CONSTI. art. 15.
63
Navtej singh Johar v. Union of India 2018 INSC 790.
64
National Legal services Authority of India v. Union of India 2014 INSC 275.

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Uniform Civil Code that would legalise same-sex marriage to the Law commission. It
defines marriage as “the legal union as prescribed under this Act of a man with a woman,
a man with another man, a woman with another woman, a transgender with another
transgender or a transgender with a man or a woman. All married couples in partnership
entitled to adopt a child. Sexual orientation of the married couple or the partners not to be
a bar to their right to adoption. Non-heterosexual couples will be equally entitled to adopt
a child.”

52. It is humbly submitted that there are currently several same-sex marriage petitions before
the Courts. A ruling by the Supreme Court of India in Sonny Gerry v. Gerry Douglas65
widened the definition of families to live-in couples inclusive of LGBT, thereby providing
LGBT couples rights and benefits equal to that of other married couples.

53. It is humbly submitted that thus, by not issuing the birth certificate to the child of
Transgender couple the state has infringed the rights of LGBTQIA community.

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?

The counsels for Petitioners humbly contend before this Hon’ble Supreme Court that the
Constitutional Power of Court to frame laws has not led to the scenario where legislature have
become the Executive wing.

54. It is humbly submitted that The Supreme Court serves as an executive under Article 142 of
the Constitution of Aryavart in order to ensure complete justice and the guidelines and
temporary legislations can be made by the Supreme Court that the legislature should follow
accordingly.66

4.1 Whether the Constitutional power of Court is overlapping power of Judiciary with
the other two organs?

55. It is humbly submitted that the theory of ‘Separation of Powers’ by Montesquieu in 1748
had its origins in his genuine concern to avoid autocracy and tyranny if the legislative,

65
Sonny Gerry v. Gerry Douglas 2 SCC 197 (2018).
66
INDIA CONSTI. art. 142.

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executive and judicial powers were to be concentrated in one organ or one individual. Still,
the legislative and executive functions continued to be in the same hands till the middle of
the 19th century. Ever since separate domains came into being, it has been a saga of
frictions and tensions. The case of India since independence is no exception. So, it is
appropriate for us to take stock of the harmonious working of the three organs.

56. It is humbly submitted that harmony lies in each organ doing its job without interfering
with that of the others. This warrants a spirit of mutual respect, responsibility and restraint.
Unfortunately, there have been several instances of crossing the boundaries. We are
familiar with the excesses of the Executive in disregard of their accountability to the
Legislature on certain occasions. There have been cases when the Rules framed under the
delegated ‘Subordinate Legislation’ violated the provisions of original legislation by the
Parliament. Violation of rights and liberties of citizens by the Executive at times is too
visible for comfort.

57. It is humbly submitted that at times, the Legislature too has tended to cross the line. The
39th Constitution Amendment placing the election of President, Vice President and Prime
Minister beyond the scope of judicial scrutiny in the circumstances in 1975 is one such
instance. There have been quite a few judicial pronouncements that gave a distinct
impression of an overreach. These actions have resulted in an avoidable blurring of the
contours demarcated by the Constitution. They have led to the question as to how the three
organs of the State should respect the jurisdictional sanctity enshrined in the Constitution
instead of arrogating to themselves a sense of supremacy.

58. It is humbly submitted that as early as in 1955, in Ram Jawaya v. The State of Punjab, the
Supreme Court held that “Our Constitution does not contemplate assumption, by one organ
or part of the State, of functions that essentially belong to another”. By this, it is logical to
conclude that even the principle of ‘first among the equals’ does not apply to any of the
three organs.67

59. It is humbly submitted that in the case of P. Ramachandra Rao v. The State of Karnataka,
the apex Court observed that “The Supreme Court does not consider itself to be an
imperium in imperio (an empire into an empire) or would function as a despotic branch of
the State. Former Chief Justice of India Dr. A.S. Anand held that “In saying that the

67
Ram Jawaya v. the State of Punjab, AIR 1955 SC 549 : 1955 2 SCR 225.

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judiciary is the guardian of the Constitution, it is not implied that the legislature and the
executive are not equally to guard the Constitution. For the progress of the nation, however,
it is imperative that all of the three wings of the State function in complete harmony”.68

60. It is humbly submitted that the for the smooth functioning of any government, cooperation
and coordination among all three wings of the government are necessary. Professor Garner
said that “this doctrine of separation is impracticable as working principle of Government.
It is difficult to divide the functions of each organ on an accurate basis.

61. It is humbly submitted that under the Indian Constitution, the State has the primary
responsibility for ensuring the country’s justice, liberty, equality, and fraternity. The State
is obligated to protect the fundamental rights of individuals and to implement the Directive
Principles of State Policy. To prevent the state from evading its responsibilities, the Indian
Constitution has granted the Court’s inherent powers to review the State’s actions. In this
context, the Indian judiciary has been regarded as the protector and guardian of the Indian
Constitution.

62. It is humbly submitted that following its constitutional obligation, the Indian judiciary has
actively defended individuals’ fundamental rights whenever necessary from the state’s
unjust, unreasonable, and unfair actions or inactions. By upholding human rights, the
judiciary has come a long way in terms of judicial activism, from defending the rights of
women in the workplace to implementing the fundamental principles of sustainable
development. The judiciary has approached every aspect of human life and proven to be an
advantage for the poor by shifting from the ‘Locus Standi’ principle to Public Interest
Litigation (PIL).

63. It is humbly submitted that according to Article 14269 in the Constitution of Aryavart, the
Supreme Court of Aryavart has the authority to enact laws under Article 142 of the
Constitution, despite the fact that the Parliament of Aryavart retains the primary authority
to do so. The order will be in effect until Parliament passes legislation to address the
problem.

4.2. Whether the Judicial legislation is antithetical?

68
P. Ramachandra Rao v. the State of Karnataka JT 2002 (4) SC 92.
69
INDIA CONSTI. art. 142.

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64. It is humbly submitted that Judicial legislation is nothing but law pronounced, proclaimed
and declared by the Judiciary–more particularly the Supreme Court, this is also known as
“judicial law” or “Judge-made law”. Even though enacting legislation is the constitutional
prerogative of the legislature. There may be circumstances where the existing laws made
by the legislature prove to be inadequate in the process of administration of justice. It is
said that even if Parliament and State Legislatures in India make laws for 24 hours a day
and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the
modern society.

65. It is humbly submitted that the legislature often fails to keep pace with the changing needs
and values nor is it realistic to expect that it will have provided for all contingencies and
eventualities. It is, therefore, not only necessary but obligatory on the Courts to step in to
fill the lacuna. In such situations, the directions issued by the higher judiciary, to fill the
vacuum until the legislature enacts substantive law is also a constitutional prerogative to
meet the ends of the justice. Hence to meet the needs of society, the Judges do make law
and it is now recognised everywhere.

66. It is humbly submitted that but this shall not be vented out as activism, as Judge-made law
or judicial law is also formally recognised under Article 133, where legislature or “other
competent authority” is inclusive of judiciary and even considering wide power of the Court
under Articles 32, 226, 227, 141 and 144 it is quite clear that the Constitution has bestowed
the power on the Courts to legislate wisely. The initial years of the Supreme Court of India
were the adoption of the British tradition of limited judicial review with a very cautious
approach. Later on, the struggle for supremacy is very well known. In the 1960s and 1970s,
the Court delivered landmark judgments which changed the course of the Indian judiciary
and political scenario.

67. In the post emergency era, Maneka Gandhi’s judgment brought human rights jurisprudence
by widening the scope of various constitutional provisions. For example, Articles 141 and
211 has been expanded manifold by judicial creativity. Later on, public interest litigation
was a stepping stone devised by the Constitutional Courts for ameliorating the social and
economic conditions of the society resulted in the evolution of human rights,
environmental, compensatory jurisprudence and more so the poverty jurisprudence.

68. It is humbly submitted that the beauty of social dynamics through Judge-made law is that it
aims at evolution and not revolution and that is why it has come to be widely accepted. “The

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problems before the Supreme Court require at times the economist’s understanding, the
poet’s insight, the executive’s experience, the politician’s scientific understanding and a
historian’s perspectives” to add to this sometime legislative duties are also required. In this
process, it has in a way rewritten the Constitution and filled the existing laws with necessary
lifeblood through its interpretation.

69. It is humbly submitted that Rule of Law according to Dicey means the absolute supremacy
or predominance of regular law as opposed to the influence of arbitrary power or wide
discretionary power. It means the exclusion of the existence of arbitrariness on part of the
government/
This is essence means that no man can be arrested, punished or be lawfully made to suffer
in body or in goods except by the due process of law and for breach of a law established in
the ordinary legal manner before the ordinary Courts of the land.

70. Equality before law:

a) While explaining this aspect of the doctrine, Dicey stated that there must be equality
before the law or equal subjection of all classes to the ordinary law of the land administered
by the ordinary law Courts.
b) Dicey believed that the exemption of civil servants from the jurisdiction of the ordinary
Courts of law and providing them with the special tribunals was the negation of equality. He
stated that any encroachments on the jurisdiction of the Courts and any restriction on the
subject’s unimpeded access to them are bound to jeopardize his rights.

71. Thus, he emphasized the role of the Courts of law as guarantors of liberty and suggested
that the rights would be secured more adequately if they were enforceable in the Courts of
law than by mere declaration of those rights in a document.

72. It is humbly submitted that in Rudul shah v. State of Bihar, Rudul Shah was arrested on
charges of murdering his wife in 1953, later he was acquitted by an Additional Sessions
Judge, in 1968, who directed his release from jail, pending further orders. But he was not
released from jail even after 14 years of his acquittal order until his plight was highlighted
in the media in 1982. This led to the filing of the public interest litigation (PIL) on his
behalf. This is a landmark judgment in the jurisprudence of State liability. It is considered
particularly important as it led to the emergence of compensatory jurisprudence for the

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violation of fundamental rights under the Constitution.70 This decision overruled Kasturi
Lal Ralia Ram Jain v. State of Uttar Pradesh, which held the State is immune and cannot
be held liable for its tortious acts.71 Though there is no express provision for awarding
compensation in the Indian Constitution, this judgment was based on the Court’s
interpretation of the extent of its remedial powers. The Court held that “The right to
compensation is some palliative for the unlawful acts of instrumentalities which act in the
name of public interest and which present for their protection the powers of the State as a
shield” The grant of such monetary compensation was in addition, and not to the exclusion,
to the right of the aggrieved person to bring an action for damages in civil law or in tort.

73. It is humbly submitted that an independent Judiciary is the sine qua non of a vibrant
democratic system. Only an impartial and independent Judiciary can stand as a bulwark for
the protection of the rights of the individuals and meet out even handed Justice without fear
or favour. The Judiciary is the protector of the Constitution and, as such, it may have to
strike down Executive, Administrative and Legislative acts of the Central and the States
Governments.

74. It is humbly submitted that for Rule of Law to prevail, Judicial independence is of prime
necessity. The independence of the Judiciary is normally assures through the Constitution
but it may also be assured through legislations, conventions and other suitable norms and
practices. The Constitution or the foundational laws on Judiciary are however, only the
starting point in the process of securing Judicial independence.

75. It is humbly submitted that ultimately the independence of the Judiciary depends on the
totality of a favourable environment created and backed by all State organs including the
Judiciary and the public opinion. The independence of Judiciary also needs to be constantly
guarded against the unexpected events and the changing social, political, economic
conditions; it is too fragile to be left unguarded.

76. Therefore, it is humbly submitted before this Hon’ble Supreme Court that the Legislature
has not become the Executive wing of Judiciary as the Judiciary is aware of its limits and
there is no inference with the duties of legislature.

70
Rudul Shah v. State of Bihar, (1983) 4 SCC 141.
71
Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, 1965 SCR (1) 375.

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PRAYER

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

1. Issue the Writ of Mandamus directing the competent authorities to recognise and register
Akram and Mrinal’s marriage and issue Birth Certificate to their son.
2. Direct the Union Parliament to pass an Act related to Uniform Civil Code in Aryavart.
3. Disallow the Impleading Application filed by the All-Indus Muslim Personal Law Board.

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

The Parties shall accept the Judgment of the Court as Final and Binding for them and shall
Execute in its Entirety and in Good Faith.

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

Place: Republic of Aryavart Most respectfully submitted,

Date: 12th October 2023 NSL06

[COUNSELS FOR THE PETITIONERS]

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