NVMCC MOOT COURT COMPETITION TC -22

1STNATIONAL VIRTUALMOOTCOURTCOMPETITION
2020

BEFORE THE HON’BLE SUPREME COURT OF ADISTHAN

WRIT PETITION NO.________/2020

(UNDER ARTICLE 32 OF THE CONSTITUTION OF ADISTHAN)

IN THE MATTER OF
LAW ADDICTS.................................................................................................PETITIONER

-Vs-

UNION OF ADISTHAN AND ANR...............................................................RESPONDENT

UPON HUMBLE SUBMISSIONS BEFORE THE HON’BLE CHIEF JUSTICE

JUSTICES OF GREY PARK AND HIS COMPANION JUSTICES

MEMORANDUM SUBMITTED ON BEHALF OF THE PETITIONER

THE COUNSELS ARE APPEARING ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS.............................................................................................. 3
INDEX OF AUTHORITIES............................................................................................. 4-8
I. LIST OF CASES.............................................................................................................. 4-7
II. LIST OF BOOKS CITED...................................................................................................8
III. LIST OF ONLINE DATABASES.................................................................................... 8
STATEMENT OF JURISDICTION................................................................................... 9
STATEMENT OF FACTS................................................................................................. 10
SUMMARY OF ARGUMENTS........................................................................................ 11
ARGUMENTS ADVANCED........................................................................................ 12-30

PRAYER ………………………………………………………………………………….

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LIST OF ABBREVIATIONS

SL.NO. ABBREVIATIONS FULLFORMS

1. AIR ALL INDIA REPORTER

2. Anr. ANOTHER

3. Bom. BOMBAY HIGH COURT

4. CrLJ CRIMINAL LAW JOURNAL

5. CrLR CRIMINAL LAW REPORTER

6. CrWP CRIMINAL WRIT PETITION

7. Current LJ CURRENT LAW JOURNAL

8. I.L.R. INDIAN LAW REPORTS

9. Ori. ORISSA HIGH COURT

10. Ors. OTHERS

11. S.C. SUPREME COURT

12. SCC SUPREME COURT CASES

13. SCR SUPREME COURT REPORTER

14. Supp. SUPPLEMENTARY

15. Raj. RAJASTHAN HIGH COURT

16. LLJ LAW LIBRARY JOURNAL

17. SLR SERVICES LAW REPORTER

18. SCALE Scale

19. M.P. MADHYA PRADESH HIGH COURT

20. T.N. TAMIL NADU HIGH COURT

21. U.S. SUPREME COURT OF UNITED STATES

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INDEX OF AUTHORITIES

I. LIST OF CASES

• A.P. Pollution Control Board II v. M.V. Naydu, (2001) 2 SCC 62: 2000 Supp (3) JT
322;
• AB Bhaskar Rao v. CBI, (2011) 10 SCC 259.
• Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573
• Air India v. Nargesh Meerza, AIR 1991 SC 1829: (1991) 4 SCC 335;
• Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC, p. 625
• Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349, 356: AIR 2004 SC
280;
• BandhuaMuktiMorcha v. Union of India, AIR 1984 SC 802
• BanwasiSeva Ashram v. State of U.P., AIR 1987 SC 374: (1986) 4 SCC 753.
• Basheer v. State of Kerala, AIR 2004 SC 2757: (2004) 3 SCC 609;
• BholanathTripathi v. State of U.P., (1990) Supp. SCC 151;
• BodhisattwaGautam v. Subbra Chakraborty, (1996) 1 SC 490;
• Cf. State of Bombay v. Bombay Education Society, 1955 1 SCR 568: AIR 1954 SC
561.
• Chairman Railway Board v. Mrs. Chandrima Das, AIR 2000 SC 986, 997.
• Chaitanya Kumar v. State of Karnataka, AIR 1986 SC 825;
• Chhetriya PardushanMukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060:
(1990) 4 SCC 449;
• Chiranjeet Lal Chowdhuri v. Union of India, AIR 1951 SC 41: 1950 SCR 869.
• Chitra Ghosh v. Union of India, AIR 1970 SC 35: (1969)2 SCC 228;
• Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979.
• Confederation of Ex-Servicemen Association v. Union of India, (2006) 8 SCC 399:
AIR 2006 SC 2945.
• D.S. Nakara v. Union of India, AIR 1983 SC 130: (1983) 1 SCC 305: 1983 (1) LLJ
104;
• Darayao v. State of U.P., 1962 (1) SCR 574;
• DattarajNathujiThaware v. State of Maharashtra, (2005) 1 SCC 590;
KaziLhendupDorji v. C.B.I., v. 1994 Supp (2) SCC 116: 1994 SCC (Cri) 873.

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• Dharam Dutt v. Union of India, (2004) 1 SCC712: AIR 2004 SC 1295;

• Dilip Kumar Garg v. State of Uttar Pradesh, (2009) 4 SCC 753: (2009) 3 JT 2002
• Donald V Baldwin 1953NZLR 313,321
• Dr. B. Singh v. Union of India, (2004) 3 SCC 363, 371: AIR 2004 SC 1923.
• E.P. Royappa v. State of T.N., (1974) 4 SCC 3, 38; Maneka Gandhi v. Union of India,
(1978) 1 SCC 248.
• Federation of Bar Association in Karnataka v. Union of India, AIR 2000 SC 2544:
(2000) 6 SCC 715
• Fertilizer Corporation, Kamgar Union v. Union of India, AIR 1981 SC 344: (1981) 1
SCC 658: 1981 (1) LLJ 193; SheelaBarse v. Union of India, AIR 1986 SC 1773: (1986)
3 SCC 596;
• Francis Coralie Mullin v. Administrator, Union of India, AIR 1981 SC 746.
• Ganga Ram Moolchandani v. State of Rajasthan,(2001) 6 SCC 89: AIR 2001 SC 2616;
• Gaurav Jain v. Union of India, (1997) 8 SCC 114 (para 51).
• Gazula Dasaratha Rama Rao v. State of A.P., AIR 1961 SC 564 (569): 1962 (2) SCR
931;
• General Manager, Southern Railway v. Rangachari. AIR 1962 SC 36: 1962 (2) SCR
586.
• GuruvayoorDevaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546.
• Indira Sawhney v. Union of India, AIR 1993 SC 477: 1992 Supp. (3) SCC 217.
• J. Pandurangrao v. A.P. Public Service Commission, AIR 1963 SC 268: (1963) 1
SCR707;
• Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305: 1993 SCC (Cri) 36;
• Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305; SarbanandaSonowal v. Union of
India, (2005) 5 SCC 665: AIR 2005 SC 2920.
• Javed v. State of Haryana, (2003) 8 SCC 369: AIR 2003 SC 3057;
• K. S Puttaswamy v Union of India, (2017) 10 SCC 136.
• Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123: 1952 SCR435.

• KedarNathBajoriav.State of West Bengal, A.I.R. 1953 S.C. 400

• Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873,891: (1981) 2 SCC 600.
• Life Insurance Corporation of India v. Manubhai D. Shah, AIR 1993 SC 171
• M.C. Mehta v. Union of India, AIR 1987 SC 1086: (1987) 1 SCC 395;

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• M.P. Rural Agriculture Extension Officers Association v. State of M.P., (2004) 4 SCC
646:
• Mackinnon Mackenzie and Co, Ltd. v. Audrey D’Costa, (1987) 2 SCC 469.
• Makhan Singh Tarsikka v. State of Punjab, 1952 SCR 368: AIR 1952 SC 27.
• Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR
621.
• Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789:
(1980) 2 SCC 591.
• Miss C.V. Muthamma v. Union of India, AIR 1979 SC 1868: (1979) 4 SCC 260;
• Mohd. Islam v. Union of India, (2003) 4 SCC 1, 8.
• Nair Service Society v. State of Kerala, (2007) 4 SCC 1, 15: AIR 2007 SC 2891.
• Namada Bachao Andolan v. Union of India, (2000)10 SCC 664: 2000 Supp (2) JT 6;
• Naranjan Singh Nathawan v. State of Punjab, AIR 1952 SC 106: 1952 SCR 395.
• Naresh Kumar v. Union of India, (2004) 4 SCC 540: AIR 2004 SC 2026;
• National Legal Services Authority v. Union of India, Writ petition (Civil) No. 400 of
2012.
• Neetu v. State of Punjab, (2007) 10 SCC 614, 619;
• New Reviera Cooperative Housing Society v. Special Land Acquisition Officer, (1996)
• People’s Union for Civil Liberties v. Union India, (1997) 3 SCC 433 (para 13): AIR
1997 SC 1203.
• Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111:
(2002) 3 SLT 202;
• Prem Shankar Shukla v. Delhi Administration, (1987) 3 SCC 526: AIR 1980 SC 1535;
• Pritam Kaur v. State of Pepsu, AIR 1963 Punj. 9 (FB);
• R. Varadarajanv. Salem Municipality, AIR 1973 Mad. 55: (1972) 2 Mad LJ 485.
• Rajiv Ranjan Singh ‘Lalan’ (VIII) v. Union of India, (2006) 6 SCC 613,652-53
• Ram Prasad Narayan Sahi v. State of Bihar, AIR 1953 SC 215.
• Ramesh Thapparv. State of Madras,AIR 1950 SC 124.
• Ranji Thomas v. Union of India, (2000) 2 SCC 658; Chairman & M.D., BPL Ltd. v.
S.P. Gururaja, (2003) 8 SCC 567.
• S. Nambi Narayanan v. Siby Mathews & Ors., Civil Appeal No. 6637-6638 of 2018.
• S.P. Gupta v. Union of India, AIR 1982 SC 149: 1981 Supp. SCC 87

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• Sakhawat Ali v. State of Orissa, 1955 (1) SCR 1004: AIR 1955 SC 166;
• Saurabh Chaudri v. Union of India, AIR 2004 SC 361: (2003) 11 SCC 146
• Shabnam Hashmi v. Union of India ,(2014) 4 SCC 1
• Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630: (1990) 1 SCC
520;
• Shenoy K. Ramdas v. Chief Officer, Town Municipality Council, Udipi, AIR 1974 SC
2177: (1974) 2 SCC 506;
• Sonabai Yashwant Jadhav v. Bala Govinda Yadav, AIR 1983 Bom 156.
• State of H.P. v. A parent of a student of Medical College, Shimla, AIR 1985 SC 910:
(1985) 3 SCC 169;
• State of Haryana v. Jai Singh, (2003) 9 SCC 114: AIR 2003 SC 1696;
• State of Karnataka v. State of A.P., (2000) 9 SCC 572: (2000) 6 JT 1;
• State of Kerala v. B.Surendra Das, Civil Appeal Nos. 3196- 98/ 2014, decided on 5-3-
2014
• State of Madhya Pradesh v. Mandavar, AIR 1955 SC 493;

• State of Madhya Pradesh v.Kedia Leather & Liquor Ltd., (2003) 7 SCC 389: AIR 2003
SC 3236.
• State of Rajasthan v. Pratap Singh Thakur, AIR 1960 SC 1208: 1961 (1) SCR 222;
• State of T.N. v. K. Sabanayagam, AIR 1998 SC 344: (1998) 1 SCC318
• State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 (320): AIR 1952 SC 75;
• Sunil Batra v. Delhi Administration, AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1
SCR 392;
• UpendraBaxi v. State of U.P., (1981) 3 SCALE 1136 (SC): (1983) 2 SCC 308;
• Vincent Panikurlangara v. Union of India, AIR 1987 SC 990: (1987) 2 SCC 165;
• Virender Gaur v.State of Haryana, (1995) 2 SCC 577;
• Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288.
• Waadhya v. State of Bihar, AIR 1987 SC 579(3): (1987) 1 SC 378
• Welfare Asson, ARP v. Ranjit P. Gohil, (2003) 9 SCC 358;

II. LIST OF BOOKS CITED

SL.NO. BOOKS EDITION YEAR

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1. M.P. Jain, Indian Constitutional Law 7th Edition 2016

2. Durga Das Basu, Shorter Constitution of India 14th Edition 2015
3. V.N. Shukla, Constitution of India 12th Edition 2013
4. Dr. J.N. Pandey, Constitutional Law of India 54th Edition 2017
5. Prof. S.R. Bhansali, Law Relating to Human Rights -- 2013

III. LIST OF ONLINE DATABASES

SL. NO. ONLINE DATABASES

1. Manupatra (www.manupatra.com)
2. The Judgement Information System (www.judis.nic.in)

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STATEMENT OF JURISDICTION

It is most humbly submitted that the present Petitioner has approached this Hon’ble Court
under Article 321 of the Constitution of Grey Park.

The present memorandum sets forth the facts, contentions and arguments present in
the case.

1
Article 32: Remedies for enforcement of rights conferred by this part-
(1) The right to move to the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) The Supreme Court shall have the Power to issue directions or orders or writs including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, which ever may be appropriate, for the
enforcement of any rights conferred by this part.

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STATEMENT OF FACTS

[¶1.]Union of Adisthan is a democratic country which is composed of people belonging to

different cultures and religions. Srinispur is a modernised state in the Union of Adisthan. Mr.
Mike and Mr. Ross are childhood friends and have graduated together from the Govt. Medical
College (GMC), Srinispur. Mr. Mike and Mr. Ross were secretly in a relationship from 2015.
Post the Apex Court’s decision in 2018, they finally decided to get married despite facing
opposition from their families.

[¶2.]Mr. Mike and Mr. Ross decided to solemnize their marriage as per the provisions of the
Special Marriage Act, 1954 (SMA,1954). On 25-11- 2019, they submitted a notice as per the
specifications given under Section 5 of the SMA, 1954 to the marriage officer, Srinispur. The
marriage officer in pursuance of his obligation under section 6(2) of the SMA, 1954, published
the notice submitted by Mr. Mike and Ross on 05-12-2019.

[¶3.] Mr. Hilton, father of Ross filed an objection on 18-12-2019 stating that same sex marriage
is not permissible under the SMA, 1954 and it is against contemporary social morality. He
pointed out to Section 4(c) of the Act in support of his contention. Mr. Hilton submitted several
reasons for supporting this contention namely:

{A} If same-sex civil marriage becomes common, it would give rise to an imminent
danger of the children of same-sex couples turning out to be lesbian couples. Moreover,
children will be denied of either a mother or father. He argued that, from a sociological
perspective, the primary purpose that marriages serve is to secure a mother and father for each
child who is born into a society.

{B} He confront that the predicament of this Western culture is that, it fosters an anti-natalist
mindset that fuels population decline, which in turn puts tremendous social, political, and
economic strains on the larger society. Same-sex marriage would only further undercut the
procreative norm long associated with marriage.

[¶4.]On the basis of this objection, the Marriage Officer of Vasanthpuram refused to solemnize
their marriage and the decision was communicated to Mike & Ross on 15-01-2020.
Subsequently, Mike &Ross vehemently opposed the decision of the marriage officer. On the
contrary, they were of their opinion that the practice of prohibiting same-sex marriage grossly
infringed with their personal liberties and their right to life at large. With the Supreme Court
unanimously declaring a part of Sec. 377 to be unconstitutional, they were convinced that an
obstruction to same-sex marriages explicitly defeats the sole objective behind decriminalizing
homosexuality.

[¶5.]Mr. Mike & Mr. Ross approached an NGO named LAW ADDICTS who fight for the
rights of LGBTQI section of society in Adisthan. LAW ADDICTS filed a Public Interest
Litigation before the Supreme Court of Adisthan under Article 32 of the Constitution
challenging the validity of the decision of the Marriage Officer and seeking the intervention of
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the Court for preventing the discrimination on the basis of sex. Hence, the present Public
Interest Litigation.

SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE PIL IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF ADISTHAN?

It is humble submission of the petitioners that the instant Public Interest Litigation is
maintainable before the Hon'ble Supreme Court. The jurisdiction conferred upon this Hon’ble
Court under Art. 32 of the Constitution is an important and an integral part of the basic
features of the Constitution. The nature of such powers are plenary and are thus not fettered
by any legal constraints.
ISSUE 2 – WHETHER THE DECISION OF THE MARRIAGE OFFICE CREATES
DISCRIMINATION?

It is the humble submission before the Hon’ble Supreme Court on behalf of the petitioner that
the decision is creating discrimination.The decision of the marriage officer creates
discrimination on basis of sexual orientation as it don’t recognize the marriage right between
homosexuals. The decision of marriage officer don’t go accordance with the constitutional
values of right to equality and right against discrimination.
ISSUE 3-WHETHER THE SPECIAL MARRIAGE ACT IS VIOLATIVE OF
FUNDAMENTAL RIGHTS?

It is the humble submission before the Hon’ble Supreme Court on behalf of the petitioner that
the special marriage act is violative of fundamental rights.Section 4 and Schedule Nos. 2 to 4
of the Special Marriage Act, 1954 restrict the process of application, solemnization and
registration of marriages under the Act of 1954..The words like ‘widow-widower’, ‘male-
female’ and ‘bride-bridegroom’ in the Special Marriage Act, 1954 only favours to the
heterosexual couples.Thus Homosexual couples like that of the petitioners are excluded from
entering into the institution of marriage and thus amounts to discrimination.
ISSUE 4 –WHETHER THE COURT SHOULD DIRECT THE PARLIAMENT TO
AMEND THE PROVISIONS OF SPECIAL MARRIAGE ACT INORDER TO
FACILITATE THE SAME SEX MARRIAGE?

It is the humble submission before the hon’ble supreme court on behalf of the petitioner that
the court should direct the parliament to amend the provisions of special marriage act inorder

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to facilitate the same sex marriage.

ARGUMENT ADVANCED

ISSUE I: WHETHER THE PIL IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF ADISTHAN?

It is humble submission of the petitioners that the instant Public Interest Litigation is
maintainable before the Hon'ble Supreme Court. The jurisdiction conferred upon this Hon’ble
Court under Art. 32 of the Constitution2 is an important3 and an integral part of the basic
features of the Constitution. 4 The nature of such powers are plenary 5 and are thus not fettered
by any legal constraints. 6 It is the humble submissions on behalf of the Petitioners that, [I.A]
the Petitioners have the locus standiin the instant case, that [I.B] the fundamental rights of the
LGBTQI sections of society are being violated.
[I.A] The Petitioners Have Locus Standi In The Instant Case.

[¶.1] No rigid rule of locus standican be applied to a Public Interest Litigation. The expression
‘Public Interest Litigation’ means a legal action initiated in a Court of law for the enforcement
of public interest or general interest in which the public or a class of community have pecuniary
interest or some interest by which their legal rights or liabilities are affected.7 The judiciary has
now make it clear 8, that a writ petition may be moved not only by an aggrieved individual but
also by a public spirited individual9 or a social action group, for the enforcement of the

2
The Constitution of India, 1950, Art.32.
3
Ramesh Thapparv. State of Madras,AIR 1950 SC 124.
4
Fertilizer Corporation Kamgar Union v. Union of India, (1981) 1 SCC 568.
5
AB Bhaskar Rao v. CBI, (2011) 10 SCC 259.
6
Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979.
7
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305: 1993 SCC (Cri) 36; Ashok Kumar Pandey v. State of West
Bengal, (2004) 3 SCC 349, 356: AIR 2004 SC 280; Neetu v. State of Punjab, (2007) 10 SCC 614, 619; Dr. B.
Singh v. Union of India, (2004) 3 SCC 363, 371: AIR 2004 SC 1923.
8
State of H.P. v. A parent of a student of Medical College, Shimla, AIR 1985 SC 910: (1985) 3 SCC 169; D.S.
Nakara v. Union of India, AIR 1983 SC 130: (1983) 1 SCC 305: 1983 (1) LLJ 104; Confederation of Ex-
Servicemen Association v. Union of India, (2006) 8 SCC 399: AIR 2006 SC 2945.
9
UpendraBaxi v. State of U.P., (1981) 3 SCALE 1136 (SC): (1983) 2 SCC 308; S.P. Gupta v. Union of India, AIR
1982 SC 149: 1981 Supp. SCC 87; Fertilizer Corporation, Kamgar Union v. Union of India, AIR 1981 SC 344:
(1981) 1 SCC 658: 1981 (1) LLJ 193; SheelaBarse v. Union of India, AIR 1986 SC 1773: (1986) 3 SCC 596;
Wadhwav. State of Bihar, AIR 1987 SC 579: (1987) 1 SCC 378; Vincent Panikurlangara v. Union of India, AIR
1987 SC 990: (1987) 2 SCC 165; M.C. Mehta v. Union of India, AIR 1987 SC 1086: (1987) 1 SCC 395; People’s
Union for Democratic Rights v. Police Commissioner, Delhi, (1989) 4 SCC 730.

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constitutional or legal rights. 10 Even where no particular person has been legally injured but a
public injury has been caused by the violation of a constitutional principle 11, any person who
is likely to be affected by such public injury would be allowed to complain of such
violation.12This Hon’ble Court in a plethora of cases,13 has observed that, “any member of
public acting bona fide and having interest can maintain an action for public wrong or injury
to put judicial machinery in motion.” 14In this case, the impugned legislation 15 is a piece of
colonial legislation which does not inculcate the approaches of transformative
constitutionalism, hence its non-compliance to constitutional ethos and values which makes it
permissible and provides locus to the said individual and NGO to approach this Hon’ble Court.
[¶.2] The Court can itself take cognizance of the matter and can proceed suomotuor on a
petition of any public spirited individual or body. 16 A PIL would only be entertained if a
segment of the public is interested, and the petitioners is not aggrieved in his individual
capacity alone.17The Court would not take the matters in a narrow or technical manner. 18The
Court cannot close its eyes and persuade itself to uphold publicly mischievous actions which
have been so exposed and advancement of the public interest and avoidance of the public
mischief are the paramount considerations.19The impugned Act, violates the fundamental rights
of LGBTQI community and also they are the citizens of the country 20 and thereby satisfies to
be an ‘appropriate proceeding’ under Art.32. 21 In this case, ‘Law Addicts’ being a public
spirited organization has appropriately challenged the Act passed by the legislature for being
derogatory to the LGBTQI community as a whole.

10
BholanathTripathi v. State of U.P., (1990) Supp. SCC 151; Shenoy K. Ramdas v. Chief Officer, Town
Municipality Council, Udipi, AIR 1974 SC 2177: (1974) 2 SCC 506; R. Varadarajanv. Salem Municipality, AIR
1973 Mad. 55: (1972) 2 Mad LJ 485.
11
BandhuaMuktiMorcha v. Union of India, AIR 1984 SC 802
12
S.P. Gupta v. Union of India, AIR 1982 SC 149: 1981 Supp. SCC 87; BanwasiSeva Ashram v. State of U.P.,
AIR 1987 SC 374: (1986) 4 SCC 753.
13
S.P. Gupta v. Union of India, AIR 1982 SC 149: 1981 Supp. SCC 87; See Also, BandhuaMuktiMorcha v. Union
of India, AIR 1984 SC 802; People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473; Bihar
Legal Support Society v. C.J.I., AIR 1987 SC 38; Forward Construction Co. v. PrabhatMandal, AIR 1986 SC
391.
14
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305; SarbanandaSonowal v. Union of India, (2005) 5 SCC 665:
AIR 2005 SC 2920.
15
Special Marriage Act, 1954.
16
BodhisattwaGautam v. SubbraChakraborty, (1996) 1 SC 490; Chairman, Railway Board v. Chandrima Das,
2000 (2) SCC 465.
17
GuruvayoorDevaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546.
18
Mohd. Islam v. Union of India, (2003) 4 SCC 1, 8.
19
Chaitanya Kumar v. State of Karnataka, AIR 1986 SC 825; Nair Service Society v. State of Kerala, (2007) 4
SCC 1, 15: AIR 2007 SC 2891.
20
Fertilizer Corporation Kamgar Union v. Union of India, (1981) 1 SCC 568; Ram Prasad Narayan Sahi v. State
of Bihar, AIR 1953 SC 215.
21
Darayao v. State of U.P., 1962 (1) SCR 574; See Also, BandhuaMuktiMorcha v. Union of India, AIR 1984 SC
802.

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[¶.3] No one has the right to waiver of the locus standi rule.22 The question of sufficient interest
of the petitioner cannot be considered in the abstract, it must be taken together with the legal
and factual context.23 It is now established that a writ petition may be moved not only by an
aggrieved individual but also by a public spirited individual 24 or a social action group, for the
enforcement of the constitutional or legal rights 25 of some other person.The grievance in a
public interest action is about the content and conduct of Government action in relation to the
constitutional or statutory rights of segments of society and in certain circumstances the
conduct of Government policies. To facilitate filing of such cases by public minded citizens,
the Court has lowered the “locus standi threshold.” 26
[¶.4] The proceedings in PIL are not adversarial but are of cooperation and collaboration
between the State and the Court. 27 A person acting bona fide and having sufficient interest in
the proceeding of public interest litigation will certainly have a locus standiand can approach
the Court to wipe out violation of fundamental rights and genuine infraction of statutory
provisions.28 The aforesaid NGO being an organization dedicated to uplift the status of
marginalized LGBTQI community, has adequate locus standito challenge the vires of the
impugned Act.
[I.B] The Fundamental Rights Of LGBTQI community is Being Violated.

[¶.5] The fundamental rights are intended not only to protect individual rights but are based on
high public policy. Liberty of the individual and protection of fundamental rights are the very
essence of the democratic way of life adopted by the Constitution, and it is the privilege and
duty of this Court to uphold those rights. 29 The Fundamental Rights guaranteed by the
Constitution would have been worth nothing had the Constitution has not provided an effective

22
S.P. Anand Indore v. H.D. DeveGowda, (1996) 6 SCC 734 (para 18): AIR 1997 SC 272; Nair Service Society
v. State of Kerala, (2007) 4 SCC 1, 15 (para 22): AIR 1999 SC 540.
23
Rajiv Ranjan Singh ‘Lalan’ (VIII) v. Union of India, (2006) 6 SCC 613,652-53 (paras 77 and 78) per KAPADIA
J. dissenting.
24
UpendraBaxi vs. State of U.P., (1981) 3 Scale 1136 (SC): (1983) 2 SCC 308, cited in S.P. Gupta v. Union of
India, AIR 1982 SC 149 (para16-17) 1981 Supp. SCC 87; Fertilizer Corp., Kamgar Union v. Union of India, AIR
(1981 SC 344 (para 23): (1981) 1 SCC 658: 1981 (1) LLJ 193; SheelaBarse v. Union of India, AIR 1986
SC 1773 (para8): (1986) 3 SCC 596; Waadhya v. State of Bihar, AIR 1987 SC 579(3): (1987) 1 SC 378
25
Shenoy K. Ramdas v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177: (1974) 2 SCC 506;
Varadarajan R. v. Salem Municipality, AIR 1973 Mad.55: (1972) 2 Mad LJ 485.
26
Ranji Thomas v. Union of India, (2000) 2 SCC 658; Chairman & M.D., BPL Ltd. v. S.P. Gururaja, (2003) 8
SCC 567.
27
Gaurav Jain v. Union of India, (1997) 8 SCC 114 (para 51).
28
DattarajNathujiThaware v. State of Maharashtra, (2005) 1 SCC 590; KaziLhendupDorji v. C.B.I., v. 1994 Supp
(2) SCC 116: 1994 SCC (Cri) 873.
29
Daryao and Ors. V. State of U.P., 1961 AIR 1457, 1962 SCR (1) 574.

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mechanism for their enforcement. The fundamental right conferred on the people will become
a mere adornment because right without remedies are as writ in water. 30

[¶.6] As Khanna, J., has emphasized in Kesavananda31 “As long as some Fundamental
Rights exist and are a part of the Constitution, the power of judicial review has also to be
exercised with a view to see that the guarantees afforded by those rights are not contravened.”
Violation of fundamental rights is sine qua non of the exercise of the right conferred by
Art.32.32 When once Court is satisfied that the fundamental rights has been infringed, it is the
duty of the Court to afford relief.33

[¶.7] In the instant case, the denial of solemnizing the marriage of Mr. Mike and Mr. Ross,
deprives them of their most cherished Fundamental Rights under Articles 14, 19 and 21 of the
Constitution, i.e. Right to Equality, Right to freedom of speech and expression and Right to
Life. The denial of the aforesaid Fundamental Rights for having a distinct sexual orientation is
violative of the essence of Part III of the Constitution. Since the fundamental rights of
LGBTQ’s are being grossly hampered, which acts as an undemocratic hiccup to their right to
livelihood, the humble petitioners have approached this Hon’ble court to do away with the
derogatory practice against the LGBTQ’s.

ISSUE 2 – WHETHER THE DECISION OF THE MARRIAGE OFFICER CREATES

DISCRIMINATION?

[¶.8]It is the humble submission before the Hon’ble Supreme Court on behalf of the petitioner
that the decision is creating discrimination.The decision of the marriage officer creates
discrimination on basis of sexual orientation as it don’t recognize the marriage right between
homosexuals. The decision of marriage officer don’t go accordance with the constitutional
values of right to equality and right against discrimination.
Mandamus is a judicial remedy in the form of an order from a court to any government,
subordinate court, corporation, or public authority, to do (or forbear from doing) some specific
act which that body is obliged under law to do (or refrain from doing), and which is in the

30
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789: (1980) 2 SCC 591.
31
KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225.
32
Federation of Bar Association in Karnataka v. Union of India, AIR 2000 SC 2544: (2000) 6 SCC 715; Fertilizer
Corp. Kamgar Union v. Union of India, AIR 1981 SC 344,347: (1981) 1 SCC 568.
33
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295: (1964) 1 SCR 332.

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nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel
an authority to do something against statutory provision.

[¶.9] The writ of mandamus issued to the following grounds: That the petitioner has a legal
right. there's infringement of the legal right of the petitioner; the infringement is due to non-
performance of the duty by the public authority.The party requesting a writ of mandamus to be
enforced should be able to show that they have a legal right to compel the respondent to do or
refrain from doing the specific act. The duty sought to be enforced must have two qualities:[2] It
must be a duty of public nature and the duty must be imperative and should not be discretionary.

[¶.10] Mandamus lies against authorities whose duty is to perform certain acts and they have
failed to do so. Under following circumstances mandamus can be issued:

(i) The applicant must have a legal right to the performance of a legal duty11. It will not issue
where to do or not to do an act is left to the discretion of the authority12. It was refused where
the legal duty arose from an agreement which was in dispute13. The duty to be enforced by a
writ mandamus could arise by a provision of the Constitution14 or of a statute15 or of the
common law16.

(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V. Imanual,
A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R.
738 the Supreme Court stated that mandamus might under certain circumstances lie against a
private individual if it is established that he has colluded with a public authority.

It will not issue against a private individual to enforce a private right such as a contract17.Even
though mandamus does not lie to enforce a contract inter partes, it will lie where the petitioner's
contractual right with a third party is interfered with by the State18. Mandamus will not issue
to enforce departmental manuals or instructions not having any statutory force which do not
give rise to any legal right in favour of the petitioner as in the cases of Raman & Ramanv. State
of Madras,34; State of Assam v. Ajit Kumar, 35And In Case of Firm Al. Ar. Arunachalam
Chettiar ... vs Kaleeswarar Mills Ltd36,it was held that mandamus is not a writ of right and is
not issued as a matter of course. Some of the conditions precedent to the issue of writ
of mandamus appear to be: (1) the applicant for a writ of mandamus must show that there
resides in him legal right to the performance of a legal duty by the party against whom
the mandamus is sought; (2) the Court will not Interfere to enforce the law of the land by the
extraordinary remedy of a writ of mandamus in cases where an action at law will lie for
complete satisfaction; in order, therefore, a mandamus may issue to compel something to be
done, it must be shown that the statute imposes a legal duty; (3) the writ is only granted to
compel the performance of the duties of a public nature; and (4) the Court will, as a general
rule and in the exercise of its discretion, refuse a writ of mandamus when there is an alternative
specific remedy at law, which is not less convenient, beneficial and effective.

34A.l.R. 1959 S.C. 694

35A.l.R. 1965 S.C. 1196.
36... on 14 August, 1956

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In the instant case, Mandamus will be applicable on the officer as it is his duty to do all the
formalities.

ISSUE 3-WHETHER THE SPECIAL MARRIAGE ACT IS VIOLATIVE OF

FUNDAMENTAL RIGHTS?

It is the humble submission before the Hon’ble Supreme Court on behalf of the petitioner that
the special marriage act is violative of fundamental rights.Section 4 and Schedule Nos. 2 to 4
of the Special Marriage Act, 1954 restrict the process of application, solemnization and
registration of marriages under the Act of 1954..The words like ‘widow-widower’, ‘male-
female’ and ‘bride-bridegroom’ in the Special Marriage Act, 1954 only favours to the
heterosexual couples.Thus Homosexual couples like that of the petitioners are excluded from
entering into the institution of marriage and thus amounts to discrimination.

Right to equality provided under Art 14,Freedom of speech and expression protected under
Art 19 and Right to life to life and personal liberty preserved under Art 21 are the three corner
of the triangle of the constitution.To establish the validity of any law or decision, it is
required to prove the its constitutionality by these three touchstone of the constitutionality.
[3.1]Whether it attracts the provision of Art13?

Laws are made according to the need of hour by the representative of people that balance

various interests according to the requirements.37As the Supreme Court has stated: “What
form a regulatory measure must take is for the legislature to decide and the court would not
examine its wisdom or efficacy except to the extent that article 13 of the constitution is
attracted.”The Court, while deciding on polygamy has to refer to the Doctrine of ‘Legitimate
State Interests’ through a three step process where firstly, to justify an encroachment, there
must be a law in existence. Secondly, the state aim should be legitimate.Thirdly, the
procedures which are adopted by the legislature must be in proportionate to the object and
needs of the provision.38 According to At 13 the word “ law” includes any Ordinance, order,
bye law, rule, regulation, notification, custom or usages having in the territory of Union of
Adisthan the force of law; laws in force includes laws passed or made by Legislature or other
competent authority in the territory of Union of Adisthan before the commencement of this
Constitution and not previously repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in particular areas.In the present case,the

37
Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573
38
K. S Puttaswamy v Union of India, (2017) 10 SCC 136.

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challenged provisions are the part of special marriage act and thus comes under the preview
of law as it was made by competent legislative authority violating fundamental rights.
Art 13 states that, All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the provisions
of this Part, shall, to the extent of such inconsistency, be void.

[3.2]The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, bevoid.39

In The general presumption, the statue is constitutional and the burden to prove its
unconstitutionality is on the person who challenges it. 40The allegations regarding the
violation of a constitutional provision should be specific, clear and unambiguous showing a
gross violation of fundamental rights.In the present case,the provisions having protection of
art 13 are said to be the violative of Art 14,Art 19 and Art 21,which will be proved further.

As held In Minerva Mills Ltd & Ors. V. Union of India41, “it is the function of the judges,
and their duty, to pronounce upon the validity of laws. If courts are totally deprived of that
power, the fundamental rights conferred on the people will become a mere adornment. A
controlled constitution will then become uncontrolled.” Judicial review must
beexercised.with insight into social values to supplement the changing social needs. The
existing rules are required to be uphold or removed readjusting the social order through rule
of law. It is thus accordingly suggested, that this Court should have no difficulty on deciding
the validity of theprovisions.
[3.3] It leads to sham legislation.
In the case of Snook v London & West Riding Investments 42, the Hon’ble court defined a
sham legislation and held that, “acts done or documents executed by the parties to the “sham”
which are intended by them to give to third parties or to the court the appearance of creating
between the parties legal rights and obligations different from the actual legal rights and
obligations (if any) which the parties intend to create.” sham exists where the parties say one
thing intending another.43In the present case, upholding these sections as constitutional will

39
Art 13 of the constitution of Union of Adisthan
40
Shabnam Hashmi v. Union of India ,(2014) 4 SCC 1
41
1980 AIR 1789, 1981 SCR (1) 206
42
1967 All ER 518
43
Donald V Baldwin 1953NZLR 313,321

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create a sham legislation which will take away the actual rights guaranteed under Art 19(1)
since these provisions blatantly violate the fundamental rights.

[3.4]It violates right toequality by being arbitrary.

Right to equality provides for equality before law and equal protection of law 44.The
challenged provision violates right to equality.
In Shayara Bano v. Union of India & Ors.,45“when something is excessive
anddisproportionate, such legislation would be manifestly arbitrary”. The expression
“arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure,
without adequate determining principle, not found in the nature of things, non-rational, not
done or acting according to reason or judgment, depending on the will alone” If that correlation
is not established, surely the rule will suffer from the vice of arbitrariness, and therefore will
be hit by Art.14.

The Hon’ble Supreme Court has, in Navtej Singh Johar vs. Union of India46 recognized and
declared that the person has a right to sexual identity and be treated with dignity for that
identification. Identity is to be protected and recognized by law equally and without
discrimination irrespective of choices. Any law that discriminates on the basis of sexual
identity is considered to irrational and manifestly arbitrary, violating Article 14 of the
Constitution of India. The challenged provisions of Special Marriage Act, 1954 fails to respect
the individuality and identity of homosexuals and discriminates them by excluding them from
the institution of marriage,Thus leads to arbitration.
[3.5] It has failed to pass the twin test ofreasonableness.

Art. 14 comprises of two facets: “equality before law” and the equal “protection of law” 47. It
is the essence of democracy 48 and a basic feature of the Constitution 49 . The concept of
equality is a dynamic concept50 with many dimensions 51. In the present case, the challenged

44
Chiranjeet Lal Chowdhuri v. Union of India, AIR 1951 SC 41: 1950 SCR 869.
45
9 SCC 1 Writ Petition (C) No. 118 of 2016
46
(2018) 10 SCC 1: 2018 (4) KLT 1 (SC),
47
KedarNathBajoriav.State of West Bengal, A.I.R. 1953 S.C. 404
48
M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212. 6
49
Chiranjeet Lal Chowdhuri v. Union of India, AIR 1951 SC 41: 1950 SCR 869.
50
M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212.
51
Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104.

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provision violates Art.14 because it fails to satisfy the ‘test of manifest arbitrariness’.
A Constitution Bench of seven Judges of the Supreme Court in the case of In Budhan
Chowdhury v. The State of Bihar explained the meaning and ambit of Article 14 in the
following words: “It is now well established that while article 14 forbids class legislation, it
does not forbid reasonable classification for the purposes of legislation. In order, however,
to pass the test of permissible classification two conditions must be fulfilled, namely (i) that
the classification must be founded on an intelligible differentia which distinguishes persons
or things that are grouped together from others left out of the group and, (ii) that the
differentia must have a rational relation to the object sought to be achieved by the statute in
question.18

[3.6]It has failed the test of intelligibledifferentia.

Art. 14 is the ‘fon juris’ of our Constitution, the fountainhead of justice.52which ensure “that
equals should not be treated unlike and Like should be treated alike”. 53 The guarantee of
equal protection54 of the law does not mean that identically the same rules of law should be
made applicable to all persons in spite of differences in circumstances. as all persons are not
equal by nature, attainment orcircumstances.55

The classification should be made on some reasonable56 and rational grounds 57.There should
be proper explaination58 of why to construct such class. When the selection or
differentiation59 doesn’t rest on any rational basis 60,it is said to be unreasonable or arbitrary.

[3.7]There is no reasonablenexus.
Right to equality provided under Art 14 has been recognized as a basic feature of the
Constitution.61 Article 14 is required to follow the principles of natural justice. 62whichstates that

52
Hanif v. State of Bihar, AIR 1958 SC 731;
53
Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC
166: AIR 1970 SC 1453
54
Pathumma v. State of Kerala, AIR 1978 SC 771: (1978) 2 SCC 1;
55
Babu Ram v. State of U.P., (1995) 2 SCC 689;
56
Rameshwar Dayal v. State of Punjab, AIR 1961 SC 816;
58
Ganga Ram Moolchandani v. State of Rajasthan,(2001) 6 SCC 89: AIR 2001 SC 2616;
58
Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123: 1952 SCR435.
58
State of Kerala v. B.Surendra Das, Civil Appeal Nos. 3196- 98/ 2014, decided on 5-3-2014
59
J. Pandurangrao v. A.P. Public Service Commission, AIR 1963 SC 268: (1963) 1 SCR707;

.
61
Basheer v. State of Kerala, AIR 2004 SC 2757: (2004) 3 SCC 609;
62
Dharam Dutt v. Union of India, (2004) 1 SCC712: AIR 2004 SC 1295;

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there should be an equality63in treatment under equal circumstances 64.the action of The
authorities in this behalf must go accordance with the laid down norms of equality65to satisfy
the tests of Article 14.24 A law ,In order not to be violative of Art 14,must follow the test of
reasonable nexus 66 after the proper division by intelligible differentia67. The reasonable
nexus68 connects the objectivity and the sphere of law 69.It shows that between the law and
the objective of the law, there must be a properreason.

In present case no reasonable nexus has been provided for such classification.There is no
reason provided between making such division on intelligible differentia and the reason
behind it the adopted method of differentiation of homosexualcouples from heterosexual
couples is unreasonable and there is no reasonable nexus.So,it has failed in the twin test of
the reasonableness giving rise to the violation of at 14.

[3.8]The provision has lead to unequal treatment among the equals.

The principle of equality of law means that the law should deal alike with all in one class;70
and equal rights should be provided to all on whom laws operate alike.71All persons in similar
circumstances shall be treated alike both in privileges and liabilities imposed.26 The laws
conferring inferior status on women is threat to equality.30)The goal of constitution is to
remove discrimination or disability only on grounds of social status as well as on the ground
of gender,which has been in our society since long. Through Fundamental rights and
directive principles of state policy, it aims to remove the impugned rule that stood against
the weaker segments of thesociety29.
In Navtej Supra, held that: ‘A person’s sexual orientation is intrinsic to their being. It is
connected with their individuality, and identity. A classification which discriminates
between persons based on their innate nature, would be violative of their fundamental rights,
and cannot withstand the test of constitutional morality.’
The provision has lead to unequal treatment among the equals as the aforesaid practice

63
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873,891: (1981) 2 SCC 600. Test for valid
classification restated.
64
M.P. Rural Agriculture Extension Officers Association v. State of M.P., (2004) 4 SCC 646:
65
State of Haryana v. Jai Singh, (2003) 9 SCC 114: AIR 2003 SC 1696;
66
Naresh Kumar v. Union of India, (2004) 4 SCC 540: AIR 2004 SC 2026;
67
Welfare Asson, ARP v. Ranjit P. Gohil, (2003) 9 SCC 358;
68
Javed v. State of Haryana, (2003) 8 SCC 369: AIR 2003 SC 3057;
69
Saurabh Chaudri v. Union of India, AIR 2004 SC 361: (2003) 11 SCC 146
70
State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 (320): AIR 1952 SC 75;
71
Sakhawat Ali v. State of Orissa, 1955 (1) SCR 1004: AIR 1955 SC 166;

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prohibits two interested person from entering into a civil contract that is marriage. It violates
their right to equality in comparison to other citizens of the land.

Article 15(1) prohibits the State from discriminating against any citizen in India on grounds
only of religion, race, caste, sex, place of birth or any of them. The scope of this Article is
wide protecting against any State action relating to the citizens’ 39 whether political, civil or
otherwise.72 The right conferred by Art. 15 is conferred on a citizen as an individual73and
provides no single citizen should be discriminated against on the ground of religion, race,
caste, sex, place of birth,.74

Art. 15(1) extends to the entire field75 of State discrimination.76The fundamental right
conferred by this clause acts as a safeguard 77 against his being subjected to discrimination in
the dimension of his rights, privileges and immunities. 78 Discrimination simply refers to
difference in treatment.79 It means distinguish unfavourably80 from others on the ground of
these provided causes. 81The offending ground must be the ‘direct and immediate’82 cause of
the discrimination as provided under art 15(1). 83.If it is made on some remote or indirect84
grounds85,it should not be taken into consideration86. In the present case,the discrimination
is solely based on the ground sex, which makes their status unequal in comparision to the
status of other citizens in the Union of Adisthan giving rise to the harsh violation of Art
15(1). Justice Chandrachud, in his concurrent opinion in Navtej Supra, had opined that:
‘Section 377 criminalizes behaviour that does not conform to the heterosexual expectations
of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual
legislation and traditional gender roles. The notion that the nature of relationships is fixed

72
Dilip Kumar Garg v. State of Uttar
Pradesh, (2009) 4 SCC 753: (2009) 3 JT 2002
73
Air India v. Nargesh Meerza, AIR 1991 SC 1829: (1991) 4 SCC 335;
74
Gazula Dasaratha Rama Rao v. State of A.P., AIR 1961 SC 564 (569): 1962 (2) SCR 931;
75
Indira Sawhney v. Union of India, AIR 1993 SC 477: 1992 Supp. (3) SCC 217.
76
General Manager, Southern Railway v. Rangachari. AIR 1962 SC 36: 1962 (2) SCR 586.
77
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111: (2002) 3 SLT 202;
78
E.P. Royappa v. State of T.N., (1974) 4 SCC 3, 38; Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
80
Pritam Kaur v. State of Pepsu, AIR 1963 Punj. 9 (FB);
81
State of Rajasthan v. Pratap Singh Thakur, AIR 1960 SC 1208: 1961 (1) SCR 222;
82
Chitra Ghosh v. Union of India, AIR 1970 SC 35: (1969)
2 SCC 228;
83
Cf. State of Bombay v. Bombay Education Society, 1955 1 SCR 568: AIR 1954 SC 561.
84
Sonabai Yashwant Jadhav v. Bala Govinda Yadav, AIR 1983 Bom 156.
85
Miss C.V. Muthamma v. Union of India, AIR 1979 SC 1868: (1979) 4 SCC 260;
86
Dilip Kumar Garg v. State of Uttar Pradesh, (2009) 4 SCC 753: (2009) 3 JT 2002

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and within the ‘order of nature’ is perpetuated by gender roles, thus excluding homosexuality
from the narrative.
[3.9]Violates freedom of speech and expression
The right to freedom of expression guaranteed to them by the Constitution of Adisthan 87
under Article 19(1)(a) is grossly affected by Denial of the institution of marriage to the
Petitioners and the refusal of law to recognize and accept homosexual marital unions is a
violation of their Freedom of expression 88 in the medium of right to expression of love,
growth of one’s personality within a relationship and development of an identity will be
meaningless if their marital union has no legal recognition. It is submitted that, Article 19
(1)(c) of the Constitution protects any citizen’s right to form an association or union as far
as the manifestation of that right does not violate the reasonable restrictions imposed under
Article 19(4) of the Constitution. The challenged provisions violates fundamental rights
guaranteed under Article 19 (1)(c) of the Constitution to the same sex couples, by
disrespecting their marital unions. A ‘Union’ is said to be constitute when more than one
person coming together and acting in consonance for a common purpose. Similar to other
bodies marital union also carries rights of being legal entity in itself,Denial of which leads
to violation of Art 19 takes place in present case.
[3.10]VIOLATION OF ART.21
Art.21 states that no person shall be deprived of his life or personal liberty except according
to the procedure89 established by law 90. The Supreme court in Maneka Gandhi’s case91 has
laid down a “triple test” for any law to be considered to be in accordance with the ‘Procedure
established bylaw’:

The law must prescribe aprocedure;

(1) The procedure must satisfy the requirements of Arts. 14 and19and

(2) It should be just, fair and reasonable.16.

The right of a person must be exercised in such a manner which does not infringe on the
fundamental rights of other person. In the present case,The challenged provisions of special

87
Life Insurance Corporation of India v. Manubhai D. Shah, AIR 1993 SC 171
88
State of Madhya Pradesh v. Mandavar, AIR 1955 SC 493; Bar Council, Uttar Pradesh v. State of
Uttar Pradesh, AIR 1973 SC 231

89
Naranjan Singh Nathawan v. State of Punjab, AIR 1952 SC 106: 1952 SCR 395.
90
Makhan Singh Tarsikka v. State of Punjab, 1952 SCR 368: AIR 1952 SC 27.
91
1978 AIR 597, 1978 SCR (2) 621 PETITIONER:

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marriage act is arbitrary in nature and thus violatesArt.14 of the constitution. Art. 19(a)
provides for the right of speech and expression. In the case at hand, a person preferring
homosexuality is deprived of her right to express their views of entering into a marital
relationship. This blatantly violates Art. 19(a).This proves beyond doubt that the ‘triple test’
for being in accordance with the procedure established by law has not been
satisfiedinthepresentcaseastheprovisions of special marriage
actnotonlyviolatesthefundamental rights is also definitely unjust, unfair and unreasonable.
[3.11]Violates the right to have a quality life-
Article 21 provides for a right to have a quality life 92.Quality life includes several rights 93
provided under Right to life and Personal liberty 94.All the above Rights are interlinked and
interconnected in nature,which collectively leads to a quality life 95.Resual and violation of
those rights combinedly96 violates the right to possess a quality life97 which is the chief goal
of Art21.

K.S. Puttawswamy v. Union of India98, it was heldLife is precious in itself. But life is worth
living99 because of the freedoms which enable each individual to live life as it should be lived.
The best decisions on how life should be lived are entrusted to the individual. They are
continuously shaped by the social milieu in which individuals exist. The duty of the state is to
safeguard the ability to take decisions – the autonomy of the individual – and not to dictate
those decisions. Life’ within the meaning of Article 21 is not confined to the integrity of the
physical body. The right comprehends one’s being in its fullest sense. That which facilitates
the fulfilment of life is as much within the protection of the guarantee oflife.

[3.12]Right to dignity is being violated.

Life is not a mere animal existence100 when dignity itslost the life goes without meaning 101.
When a life physical or mental condition is endangered human dignity 102is said to be
imprisoned. In Present case, when the people of homosexual are denied the right of

92
New Reviera Cooperative Housing Society v. Special Land Acquisition Officer, (1996)
93
State of Karnataka v. State of A.P., (2000) 9 SCC 572: (2000) 6 JT 1;
94
Namada Bachao Andolan v. Union of India, (2000)10 SCC 664: 2000 Supp (2) JT 6;
95
State of T.N. v. K. Sabanayagam, AIR 1998 SC 344: (1998) 1 SCC318
96
Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630: (1990) 1 SCC 520;
97
Virender Gaur v.State of Haryana, (1995) 2 SCC 577;
98
(2017) 10 SCC 1
99
.Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630: (1990) 1 SCC 520;
100
A.P. Pollution Control Board II v. M.V. Naydu, (2001) 2 SCC 62: 2000 Supp (3) JT 322;
101
Chhetriya PardushanMukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060: (1990) 4 SCC 449;
102
State of Madhya Pradesh v.Kedia Leather & Liquor Ltd., (2003) 7 SCC 389: AIR 2003 SC 3236.

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marriage,it violates their dignity.

In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, the Hon’ble
Supreme Court had held that the gender identity is intrinsic to one’s personality and the
denial of the said identity which one is entitled to self-determine is a violation of his/her
dignity. If the law refuses to respect that choice of partner, it ignores right to self-
determination of sexual identity of that person, which is said to be found in the instant case
doing impeachment on right to dignity.
[3.13]Right to personal autonomy and right to self-determination is being violated.

Art 21 protects the personal autonomy. Personal autonomy refers to right to exercise
autonomy over their own body and mind.It includes both the negative right of not being
distributed by others and positive right of making decisions about own life.The negative
rights provides that personal autonomy cannot be subject to the intervene caused by
others.The positive right includes right to determination and taking decisions about ownlife.
Navtej Supra, that: ‘Members of the LGBT community are entitled, as all other citizens, to
the full range of constitutional rights including the liberties protected by the Constitution .
This right of personal autonomy and self-determination are grossly violated as the civil right
of marriage has been denied to the homogenous couple.
[3.14]Right to life and personal liberty is being violated
It includes all the expect of life which makes the life meaningful and worth living. 21
provides an individual can’t with this right to life and personal liberty unless and until there
is a procedure established by law,which must be touched by the touch stone of just,fair and
reasonable procedure. Article 21 provides protection against the constitutional law
encroaching the sphere of right to life and personal liberty.91Shakti Vahini v. Union of India,
(2018) 7 SCC 192, the Hon’ble Supreme Court had held that the right of an adult to choose
one’s own partner is an important aspect of individual liberty that the State is duty-bound to
protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the
Constitution would be the freedom of choice in marriage.In present case, right to live without
Liberty is hampered by the said law as it exclude the same sex marriage provisions.
[3.15]Right to Health- Right to health refers the right to posses a good health,which is also
violated by this practice as it adopts unscientific surgeries on the body which is dangerous to
the health.It also does the violation of mental health as sexual desire is the part and parcel of
mental health and the need of sexual satisfaction is also needed just like the need of hunger
and thirst in human,which is known as naturalhealthhas been violated in present case.

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[3.16]Right to Reputation

A good reputation is an element of personal security and is protected by the Constitution

equally with the right to the enjoyment of life, liberty and property.103 Reputation which is
not only the salt of life, but also the purest treasure and the most precious perfume of life. It
is extremely delicate and a cherished value of this side of the grave. Reputation of an
individual is an insegregable facet of his right to life with dignity. 104 Every act which offends
against or impairs human dignity would constitute deprivation pro tanto of this rightto live
and it would have to be in accordance with reasonable, fair and just procedure established
by law which stands the test of other fundamental rights.105

ISSUE 4 –WHETHER THE COURT SHOULD DIRECT THE PARLIAMENT TO

AMEND THE PROVISIONS OF SPECIAL MARRIAGE ACT INORDER TO
FACILITATE THE SAME SEX MARRIAGE?

It is the humble submission before the Hon’ble Supreme Court on behalf of the petitioner that
the court should direct the parliament to amend the provisions of special marriage act inorder

103
Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288.
104
56 S. Nambi Narayanan v. Siby Mathews & Ors., Civil Appeal No. 6637-6638 of 2018.
105
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1 SCR 392;

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to facilitate the same sex marriage.A marriage is a the legally or formally recognized union of
two people as partners in a personal relationship.(Oxford dictionary)marriage inhomosexuality
goes accordance with the basic definition of marriage which basically aims at legalizing the
relationship.The intercourse between two homosexual spouses is an act of pleasure as per their
need and giving them the formal recognition as married will strengthen their relationship
adding value to the institution of marriage which is described as the union of two bodies.
It is contended that, allowing same sex marriage will contribute to the development of the
family units in society.Allowing same sex marriages will demise the divorce rate as the people
will have the fair chance to stay with their beloved and choiced partner. no more they will be
forced to stay with a partner from opposite sex having themselves deprived of proper sexual
satisfaction according to their requirements.Thislegalization will put a check on the breakdown
of unhappy marriages due to sexual Orientation.
Children may be adopted into such families which will give rise to the continuity of the family.
Marriage is a Civil right. When the act of same sex intercourse has been decriminalized and
they are recognised as citizens of the land, denying them of their civil rights of marriage and
family is a parody in the value of law.It is submitted that the sanctity of marriage can be altered
from time to time and societyto society. The vary personal law is subject to the customary laws
which says laws otherwise provided by the custom. In this effect, Bigamy is allowed in some
personal laws and polyandry is being practiced in some tribal groups. legalising same sex
marriage will have no adverse effect in this medium.

106
In Arun Kumar & Anr. v. Inspector General of Registration & Ors. referring to NALSA
Supra, held that every person has a right to self-identify one’s own gender and thus the
expression ‘bride' occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include
within its meaning not only a woman but also a transwoman as the petitioner no.2 in the said
case had self-determined herself as a woman and it was held that the State cannot stand in its
way.

[4.1]Article 253 of the Constitution Obliges the Parliament to Implement International

Treaties and Statutes.

Universal Declaration on Human Rights in Article 1 says that, “All human beings are
born free and equal in dignity and rights. They are endowed with reason and conscience

106 WP(MD)No.4125 of 2019, the Madras High Court,

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and should act towards one another in a spirit of brotherhood. Article 2 of UDHR
saysEveryone is entitled to all the rights and freedoms set forth in the Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. Article 3 guarantees everyone has the
right to life, liberty and security of person.Article 12 confers that, “No one shall be subjected
to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon
his honour and reputation. International Covenant on Civil and Political Right (ICCPR)
in Article 2 confers that each State Party to the present Covenant undertakes to respect and to
ensure to all individual within its territory and subject to its jurisdiction the rights recognised
in ICCPR without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth other status. Article 253
enables legislation to be made to implement International Treaties.107

[4.2] The State has an Obligation to Implement the Directive Principles.

The unremunerated fundamental rights include the right to human dignity, in general. 108In
Francis Mullin109 case, the Supreme Court of India read Article 7 of the ICCPR and Article
5 of UDHR and held that the right to live with basic human dignity were implicit in the right
to life guaranteed under Article 21 and that it included “no one shall be subjected to torture or
to cruel, inhuman, or degrading treatment or punishment.”110Article 51 has been relied upon to
introduce and implement various international instruments, particularly the Declaration of
Human Rights and the two Covenants on the Political and Civil Rights and. The Courts have
held that by virtue of this article international instrument, particularly those to which India is a
party, becomes part of Indian law and hence can be very well relied upon and enforced. 111

In the case Chairman Railway Board v. Mrs. Chandrima Das,112 the Supreme Court aptly
observed, “ the International Covenants and Declaration as adopted by the United Nations
have to be respected by all signatory States and the meaning given to words in those
Declarations and the Covenants have to be such as would help in effective implementation of
those rights.In Kesavanand Bharati case, the Supreme Court has reiterated that: In cases

107
National Legal Services Authority v. Union of India, Writ petition (Civil) No. 400 of 2012.
108
Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621.
109
Francis Coralie Mullin v. Administrator, Union of India, AIR 1981 SC 746.
110
People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568.
111
Prem Shankar Shukla v. Delhi Administration, (1987) 3 SCC 526: AIR 1980 SC 1535; Mackinnon
Mackenzie and Co, Ltd. v. Audrey D’Costa, (1987) 2 SCC 469.
112
Chairman Railway Board v. Mrs. Chandrima Das, AIR 2000 SC 986, 997.

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involving violation of human rights, the courts must forever remain alive to the international
instruments and conventions.113

The United Nations Human Rights Committee [UNHRC] guarantees sexual

minorities the right to privacy under Article 17 and the right to sexual orientation and identity
under Article 26 of the Convention . the Declaration of Montreal adopted on July 29, 2006,
by the International Conference on LGBT Human Rights considered the family rights of
LGBT persons as the essential and important part of human rights.Article 16 of the Universal
Declaration of Human Rights (UDHR) endorses right to family as indispensable right of any
person. Article 8 of the European Convention of Human Rights provides (right to respect for
private and family life)
and Article 12 povides (right to marry and to found a family) .

i. In the United States, the federal Supreme Court in Obergefell v. Hodges, 576 U.S.
(2015) had ruled that homosexual couples have equal right to have their marriage
recognized and registered,
ii. ii. that the homosexual couples have a fundamental right to marry under the Equal
Protection Clause of Fourteenth Amendment to the US Constitution

iii. the said right of equal access to marriage is also ensured under the Due Process
Clause. It held that all the State laws that ban homosexual marriages are unconstitutional.
Further In the country like south Africa,Canada,china,equador and brazil homosexual couples
are included in the ambit of institution of marriage after several amendments in their civil
marriage acts and rules.

Therefore it is humbly submitted to introduce necessary amendments to the special

marriage act for the solemnization of the marriage of transgender people and same sex
marriages.

113
Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC, p. 625;People’s Union for Civil Liberties
v. Union India, (1997) 3 SCC 433 (para 13): AIR 1997 SC 1203.

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PRAYER

In light of the facts of the case, arguments advanced and authorities cited, it is humbly
requested that this Hon’ble court may be pleased to adjudge and declare that:

• The PIL is Maintainable Before The Hon’ble Supreme Court Of Adisthan.

• The Decision Of The Marriage Officer Is not Valid and leads to discrimination
• It Violate Fundamental Rights.
• The Court Should Direct The Parliament To Amend The Provisions Of Special
Marriage Act.

The Honorable Court may also be pleased to pass any other order which the Court may
deem fit in the light of justice,equity, and good conscience.

All of which is most humbly and respectfully submitted.

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