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TC 30 (R)

LAW ADDICTS 1ST NATIONAL VIRTUAL MOOT

COURT COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF ADISTHAN

UNDER ARTICLE 32 OF THE CONSTITUTION OF ADISTHAN

IN THE MATTER OF

LAW ADDICTS…………………………….…….………. PETITIONER

V.

UNION OF ADISTHAN AND

OTHERS.........................RESPONDENT

WRIT PETITION (C) N o . X X X O F 2020

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER

HON’BLE JUSTICES OF THE SUPREME COURT OF ADISTHAN

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TABLE OF CONTENTS

COVER PAGE ................................................................................................................1

TABLE OF CONTENT .............................................................................................2 - 3

LIST OF
ABBREVIATIONS...........................................................................................4

TABLE OF AUTHORITIES ....................................................................................5 -

10

STATEMENT OF JURISDICTION .............................................................................11

FACT OF THE
CASE....................................................................................................12

STATEMENT OF ISSUES............................................................................................13

SUMMARY OF ISSUES.............................................................................................. 14

ARGUMENT ADVANCED..................................................................................15 – 29

1. WHETHER THE WRIT PETITION IN THE FORM OF PUBLIC

INTEREST LITIGATION FILED BY LAW ADDICTS IS
MAINTAINABLE? ....................................................................................15-18
A. The petitioner does not have a locus standi............................................15
B. There has been no violation of Fundamental
Right................................16
C. The petitioner is required to exhaust existed alternative remedy...........17
D. The Hon’ble court would not be justified in interfering with a policy
decision...................................................................................................18
2. WHETHER ANY DISCRIMINATION BASED ON SEXUAL
ORIENTATION VIOLATES FUNDAMENTAL RIGHTS?.................18-24

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A. It does not violate Right to Equality under Article 14 and 15 of the

Adisthan Constitution.............................................................................18
i. It does not violate Article 14 of the constitution........................18
(a) Classification is founded on an intelligible differentia ……18
(b) There is rational nexus between classification and objective
sought
………………………………………………………….20
ii. It does not violate Article 15 of The Constitution......................19
B. It does not violate Freedom of Speech and Expression under Article 19
of the Adisthan Constitution
…...................................................................21
C. It does not violate Article 21 of the Adisthan Constitution....................22
i. It qualifies the test of substantive due
process............................22
ii. It does not violate one’s Right to
Privacy...................................23
(a) Right to Privacy is not absolute
…………………………....23
(b) It can be curtailed by following due process of law
……….23
3. WHETHER THE DIRECTION SHOULD BE GIVEN FOR THE
INCLUSION OF SAME SEX MARRIAGE IN THE SPECIAL
MARRIAGE ACT, 1954?...........................................................................24-
29
A. Same sex marriage is against the Natural
Law…...................................24
B. Same-sex marriage will defeat the very purpose of marriage............…25
C. It denies the child either Father or Mother……….................................26
D. Presumption of constitutionality is in the favor of the
legislation…......27

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PRAYER.........................................................................................................................3
0

LIST OF ABBREVIATIONS

A.I.R. All India Records

U.P. Uttar Pradesh
Art. Article
Cl. Clause
Const. Constitution
WB West Bengal
Hon’ble Honourable
Anr. Another
Ors. Others
Pg. Page

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PIL Public Interest Litigation

S.C. Supreme Court
S.C.C. Supreme Court Cases
v. Versus
UNHRC United Nation Human Rights Commission
IGLHRC International Gay and Lesbian Human Rights
Commission
¶ & Para. Paragraph
SMA Special Marriage Act
S.C.R. Supreme Court Report
UOA Union of Adisthan
NCTE National Council for Teacher Education
UOI Union of India
Const. Constitution
Ed. Edition
U.S. United State
& And

TABLE OF AUTHORITIES

 TABLE OF CASES
1. A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27(India) …...…...........................22
2. Academy of Nutrition Improvement v. Union of India, WP(C) 80 of 2006, 4 July 2011
(India) ……....................................................................................................................18
3. Aiyar Ramanatha, P., Concise Law Dictionary, Lexis Nexis Buttersworth Wadhwa
Nagpur, 2009 (India) ……………….............................................................................15
4. Amar Singh & Ors. v. State of Bihar &Ors, MANU/BH/0218/200 (India) ….............28
5. Ameeroonisa Begum v. Mehboob Begum, A.I.R. 1953 S.C. 91 (India) ……….19 & 20
6. Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1974 S.C. 1539
(India) ................................................................................................................................
........15

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7. Ankul Chandra Pradhan v. Union of India, (1997) 6 S.C.C 1 (India) ……...................19

8. Arunachala Nadar v. State of Madras, A.I.R. 1950 S.C. 300 (India) ……....................21
9. Ashok Kumar Pandey v. State of West Bengal, A.I.R. 2004 S.C. 1923 (India) ..........16
10. Ashoka Smokeless Coal India (P.) Ltd v. Union of India ¶ 161, (2007) 2 S.C.C 640,
697 (India) ………….....................................................................................................20
11. Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v. A.P. Health,
Medical, Housing and Infrastructure Development Corporation, Hyd. and Anr., 2002
(2) A.L.D. 609 (India)
……………................................................................................18
12. Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 S.C.C. 726 (India) .............17
13. Babulal Ahmtalal Mehta v. Collector of Customs, Calcutta, A.I.R. 1957 S.C. 877
(India) ……...........................................................................................................19 & 20
14. Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898 (India)
……............................22
15. BALCO Employees Union (Regd.) v. Union of India, A.I.R.2001 S.C.W. 5135 (India)
……………...........................................................................................................16 & 18
16. Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board and Ors., A.I.R.
2007 S.C. 2276(India) ……………...............................................................................28
17. Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group,
A.I.R. 2006 S.C. 1489(India)
……………….................................................................28
18. Budhan Choudhary and Ors. V. State of Bihar, 1955 CriLJ 374(India) ……......20 & 21
19. Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044 (India) ……....16
20. Champakandorai rajan v. State of Madras, A.I.R. 1951 Mad. 120 (India)
……............20
21. Chandrakant Kalyandas Kakodkar v. State of Maharashtra, A.I.R. 1970 S.C.
1390(India) ……............................................................................................................21
22. Charanjit Lal v. UOI, A.I.R. 1951 S.C. 41 (India) …….......................................19 & 28
23. Coffee Bd. v. Joint C.T.O., A.I.R. 1971 S.C. 870 (India) …….....................................15
24. Collector of Customs v. Nathella Sampathu Chetty 1983 ECR 2198D (S.C.)
(India)...21

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25. Collector of Customs v. Sampathu Chettty, A.I.R. 1963 S.C. 316 (India)
……............21
26. Commissioner of Central Excise Jamshedpur v. Dabur (India) Ltd., (2005) 3 S.C.C.
646(India) ……………..................................................................................................21
27. Competition Commission of India v. Steel Authority of India Ltd., (2010) 10 S.C.C.
744(India) ……………..................................................................................................27
28. Confederation of All Nagaland State Services Employees' Assn. v. State of Nagaland,
(2006) 1 S.C.C. 496 (India) …………………...............................................................17
29. Court on its own motion v. Union of India, (2012) 12 S.C.C 307 (India)
…….............22
30. Dalip Singh v. State of Uttar Pradesh, (2010) 2 S.C.C. 114 (India)
……......................17
31. Directorate of Film Festivals v. Gaurav Ashwin Jain &Ors, Appeal (civil) 1892 of 2007
(India) ………………....................................................................................................18
32. Dr. Ramesh YeshwantPrabhoo v. Prabhakar Kashinath Kunte, A.I.R. 1996 S.C.
1113(India) ……............................................................................................................22
33. E.P. Royappa v. State of T.N., (1974) 4 S.C.C 3 (India)
………...................................20
34. Federation of Bar Association in Karnataka v. Union of India, (2000) 6 S.C.C. 715
(India) …………............................................................................................................16
35. Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 1981 S.C. 344
(India) ..........15
36. Gobind v. State of M.P., A.I.R. 1975 S.C. 1378(India)
…….........................................21
37. Gopal Das v. Union of India, A.I.R. 1955 S.C. 1 (India) ……......................................15
38. Gopi Chand v. Delhi Administration, A.I.R. 1959 S.C. 609 (India) …….....................19
39. Govind v. State of Madhya Pradesh, A.I.R. 1975 S.C. 1378(India) ...
……...................24
40. Govt. of A.P. v. Smt. P. Laxmi Devi, A.I.R. 2008 S.C. 1640(India) ……………........28
41. H.P. Gupta v. Union of India, (2002) 10 S.C.C 658 (India)
……..................................19

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42. H.R.E. v. Sri LakshmindraThirthaSwamiar of Sri Shirur Meth (1954) 1 S.C.R

1005(India) ……............................................................................................................21
43. Hanif v. State of Bihar, A.I.R. 1958 S.C. 731(India) ……...................................19 & 29
44. Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors., A.I.R.
1955 S.C. 367 (India) ……………................................................................................15
45. Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477 (India) …….........................19
46. J.P. Bansal v. State of Rajasthan, (2003) 5 S.C.C. 134 (India) ……............................27
47. Jagmohan Singh v. State of U.P., (1973) 1 S.C.C. 20 (India) ......................................22
48. Jasbhai v. Roshan, A.I.R. 1976 S.C. 578 (India) ……..................................................15
49. Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., (2017) 10 S.C.C. 1
(India) ……….......................................................................................................21 & 22
50. K. R. Lakshman v. Karnataka Electricity Board, (2001) 1 S.C.C. 442 (India) ……….19
51. K.D. Sharma v. SAIL, (2008) 12 S.C.C. 481 (India) ………........................................17
52. K.R. Srinivas v. R.M. Premchand, (1994) 6 S.C.C. 620 (India) ……...........................16
53. Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1987 S.C. 1159 (India) ……...........17
54. Kasturi Lal Lakshmi Reddy v. State of J&K, A.I.R. 1992 S.C. 1980 (India) …….......22
55. Kausha ON v. Union of India, A.I.R. 1978 S.C. 1457 (India) ......................................29
56. Kedar Nath Bajoria v. State of W.B, A.I.R. 1953 S.C. 404 (India) ……......................29
57. Distt. Registrar Collector v. Canara Bank, (2005) 1 S.C.C. 496 (India) ………….......16
58. Kharak Singh v. State of U. P. & Others, A.I.R. 1963 S.C. 1295 (India). ….16, 22 & 23
59. Kuttisankaran NA.I.R. v. State of Kerala, A.I.R. 1965 Ker. 161 (India) ……..............22
60. Laxmi Khandsari v. State of UP, A.I.R. 1981 S.C. 873(India) ……..............19, 20 & 29
61. Madhu Limaye v. Sub-Divisional Magistrate, Monghyr&Ors., A.I.R. 1971 S.C.
2486(India) ....................................................................................................................28
62. Mafatlal Industried Ltd. And Ors. V Union of India and Ors., 1997(89) ELT 247 (S.C.)
(India) …………………................................................................................................21
63. Magan Bhai v. Union of India, (1970) 3 S.C.C. 400 (India) …….................................16
64. Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597(India) ……..........................23
65. Mihir alias BhikariCharanSahu v. State, Cri LJ 488 (India) …….................................23
66. Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 S.C.C. 748 (India) ……...................17
67. Mohammed Shahabuddin v. State of Bihar, (2010) 4 S.C.C. 653(India) …….............27
68. Mohan Choudhary v. Chief Commissioner, Tripura, A.I.R. 1964 S.C. 173 (India) ....28

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69. Mr. X v. Hospital Z, (1998) 8 S.C.C. 296 (India) …….................................................23

70. Municipal Committee v. Punjab SEB, (2010) 13 S.C.C. 216 (India) ……...................27
71. Namit Sharma v. Union of India, (2013) 10 S.C.C. 359 (India) ……...........................27
72. Natural Resources Allocations, Re special Reference Number 1 of 2012, (2012) 10
S.C.C 1 (India)
…………...............................................................................................19
73. P. B. Roy v. Union of India, A.I.R. 1972 S.C. 908 (India)
……....................................29
74. Papnasam Labour Union v. Madura Coats Ltd, A.I.R. 1995 S.C. 22 (India)
…….......21
75. Pathumma v. State of Kerala, A.I.R. 1979 S.C. 771(India)
……...................................28
76. PN Kumar v. Municipal Corp of Delhi, 1988 S.C.R (1) 732 (India) ……....................17
77. Quraishi v. State of Bihar, A.I.R. 1958 S.C. 731 (India) ……......................................22
78. Ram Jethmalani &Ors. v. Union of India &Ors., (2011) 8 S.C.C. 1(India) ……..........17
79. Ram Krishna Dalmia v. Justice S R Tendolkar, 1959 S.C.R 279 (India)
……..............20
80. Ramcharitra v. High Court, Patna, A.I.R. 1976 S.C. 226 (India)
……..........................28
81. Ramkrishna Dalmia v. Justice Tendolkar and Ors., A.I.R. 1958 S.C.
538(India) .........28
82. Rashid Ahmed v. Municipal Board, Kairana, A.I.R. 1950 S.C. 163
(India) .................17
83. Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1996) 1
S.C.C. 642 (India)
………………..................................................................................19
84. SC Cooper v. Union of India, (1970) 3 S.C.R. 530 (India) ..........................................18
85. Sachidanand Pandey v. State of West Bengal, (1987) 2 S.C.C. 295 (India) …….........15
86. Secretary, Govt. of India v. Alka Shubhash Gadia, 1990 S.C.R, Supl. (3) 583
(India) ................................................................................................................................
........17

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87. State of Bombay v. F.N. Balsara A.I.R. 1951 S.C. 318 (India) ……....................20 &
22
88. State of Kerala v. Peoples Union for Civil Liberties, (2014) C.D.J. 831 (S.C.)
(India) ................................................................................................................................
........21
89. State of Kerela v. N.M. Thomas, (1976)2 S.C.C. 310 (India)
……...............................19
90. State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 S.C.C. 453
(India) …………............................................................................................................16
91. State v. Parmeshwaran Subramani (2009) 9 S.C.C. 724 (India) ……...........................27
92. Sunil Poddar v. Union Bank of India, (2008) 2 S.C.C. 326 (India) ……......................17
93. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 S.C.C. 1 (India) …….................23
94. Sushil Kumar Sharma v. Union of India and Ors. (2005) 6 S.C.C. 281 (India)
……....21
95. T Devadasan v. Union of India, A.I.R. 1964 S.C. 185 (India) ……..............................20
96. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 S.C.C. 481 (India) .................22
97. Thangal Kunu Musaliar v. M. Venkatachalam Potti, Authorised Official and Income
Tax Officer and Anr., (1956) 29 ITR 349 S.C. (India)
……………………….....................21
98. Thiru Muruga Finanace v. State of Tamil Nadu, A.I.R. 2000 Mad 137
(India) ................................................................................................................................
........29
99. Union of India and Ors. v. Nitdip Textile Processors Pvt. Ltd. and Ors.,
MANU/S.C./1291/2011(India)
……..............................................................................28
100. Union of India v. Paul Manickam, A.I.R. 2003 S.C. 4622(India) ……....16 &
17
101. Waman Rao v. Union of India, (1981) 2 S.C.C. 362(India)
……......................22

STATUTES

1. The Constitution of India, 1950

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2. Special Marriage Act, 1954

INTERNATIONAL CONVENTIONS
 UNHRC
 UNCRC
 IGLHRC

BOOKS

1. H.M. Seervai, Constitutional Law of India (4th ed., 1967)

2. Durga Das Basu, Commentary on the Constitution of India (8th ed., 2008)
3. M.P. Jain, Indian Constitutional Law (6th ed., 2010)
4. V.N. Shukla, Constitution of India (13th ed., 2017)
5. Ratanlal & Dhirajlal, The Indian Penal Code (36th ed., 2020)
6. Narender Kumar’s Constitutional Law of India, 10th edn., Allahabad Law Agency
7. K.D. Gaur, Textbook on Indian Penal Code (6th ed., 2018)
8. N S BINDRA, BINDRA’S INTERPRETATION OF STATUTES (M N Rao and
Amita Dhanda, 10th Edition, Lexis Nexis Butterworths,2007)
9. MAMTA RAO, PUBLIC INTEREST LITIGATION (4th Edition, Eastern Book
company, 2015).
10. 1,2&3 SAMARADITYA PAL, INDIA’S CONSTITUTION ORIGINS AND
EVOLUTION (Lexis Nexis, 2014)

LAW LEXICON AND DICTIONARIES

 Bryan A. Garner, BLACK‟S LAW DICTIONARY, (2nd ed., 2004).

 Justice R.P. Sethi, SUPREME COURT ON WORDS AND PHRASES, (2nd ed.,
2004).
 P. Ramanatha Aiyar, LAW LEXICON, (3rd ed., 2005).
 Webster’s UNIVERSAL DICTIONARY, (1st ed., 1993).

ARTICLES AND JOURNALS

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 K.K. Gulia and H.N. Mullick, “Homosexuality: A Dilemma in Discourse”, Indian J

Physiol Pharmacol
 Martha Nussbaum, A Right to Marry? Same-sex Marriage and Constitutional Law,
Dissent Magazine (2009).
 Thomas B, HIV. Prevention Interventions in Chennai, India: Are Men Who Have Sex
with Men Being Reached? AIDS Patient Care STDS. 2009 November; 23 (11): 981 –9
86 at pages 59-60

LEGAL DATABESES

1. www.scconline.com
2. www.manupatra.com
3. www.heinonline.com
4. www.jstor.com
5. www.lexisnexis.com

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Adisthan has the jurisdiction in this matter under Art.
32 of the Constitution of Adisthan which reads as follows:

“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

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(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.”

FACTS OF THE CASE

BACKGROUND
Union of Adisthan is a democratic country which is composed of people belonging to
different cultures and religions. Adisthan has held abstentions under IGLHRC which
was established in pursuance of the statutory provisions of UNHRC. Mr. Mike and Mr.
Ross are childhood friends and were secretly in a relationship from 2015. However,
they never told this to anyone as they feared societal ostracization. Post the Apex

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Court’s decision in 2018, they deliberated and finally decided to get married despite
facing opposition from their families. They decided to solemnize their marriage as per
SMA,1954. They submitted a notice as per the specifications given under Section 5 of
the SMA, 1954 to the marriage officer, Vasanthpuram district, Srinispur. The marriage
officer in under section 6(2) of the SMA, 1954, published the notice submitted by Mr.
Mike and Ross on 05-12-2019. 
Mr. Ross’s Father Contention
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. The roles of both the parents are
inevitable and essential to the proper growth and well-being of a child. 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. Moreover, 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 so, on the basis of this objection, the Marriage Officer of
Vasanthpuram refused to solemnize their marriage.
Issue Raised
Any discrimination based on sexual orientation is the violation of Art 14, 15, 19 and 21
of the Constitution. Direction must be issued to the Union Government to introduce
necessary amendments to the Special Marriage Act for the solemnisation of the
Marriage of transgender people and same sex marriages. The Apex Court decided to
hear the petition on 09/08/2020 and issued notice to UOA and State of Srinispur.

STATEMENT OF ISSUES

ISSUE- 1

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WHETHER THE WRIT PETITION IN THE FORM OF PUBLIC

INTEREST LITIGATION FILED BY LAW ADDICTS IS
MAINTAINABLE?

ISSUE- 2

WHETHER ANY DISCRIMINATION BASED ON SEXUAL

ORIENTATION VIOLATES FUNDAMENTAL RIGHTS?

ISSUE- 3

WHETHER THE DIRECTION SHOULD BE GIVEN FOR THE

INCLUSION OF SAME SEX MARRIAGE IN THE SPECIAL
MARRIAGE ACT, 1954?

SUMMARY OF ARGUEMENTS

[1.] WHETHER THE WRIT PETITION IN THE FORM OF

PUBLIC INTEREST LITIGATION FILED BY LAW ADDICTS IS
MAINTAINABLE?

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It is humbly submitted that the instant PIL is not maintainable. The Respondent seeks
to establish that; (A) The petitioner does not have a locus standi, (B) There has been no
violation of Fundamental Right, (C) The petitioner is required to exhaust existed
alternative remedy and (D) The Hon’ble court would not be justified in interfering with
a policy decision.

[2.] WHETHER ANY DISCRIMINATION BASED ON SEXUAL

ORIENTATION VIOLATES FUNDAMENTAL RIGHTS?

It is humbly submitted that the discrimination based on Sexual Orientation does not
violate any fundamental Rights. The Respondent seeks to establish that; (A) It does not
violate Right to Equality under Article 14 and 15 of the Adisthan Constitution; (B) It
does not violate Freedom of Speech and Expression under Article 19 of the Adisthan
Constitution and (C) It does not violate Article 21 of the Adisthan Constitution.

[3.] WHETHER THE DIRECTION SHOULD BE GIVEN FOR THE

INCLUSION OF SAME SEX MARRIAGE IN THE SPECIAL
MARRIAGE ACT, 1954?

It is humbly submitted that the direction should not be given for the inclusion of same
sex marriage in Special Marriage Act, 1954. The Respondent seeks to establish that;
(A) Same sex marriage is against the Natural Law; (B) Same-sex marriage will defeat
the very purpose of marriage; (C) It denies the child either Father or Mother and (D)
Presumption of constitutionality is in the favor of the legislation.

ARGUMENTS ADVANCED

1. WHETHER THE WRIT PETITION IN THE FORM OF PUBLIC INTEREST

LITIGATION FILED BY LAW ADDICTS IS MAINTAINABLE?

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[¶1] It is humbly contended that the instant PIL is not maintainable. The Respondent
seeks to establish that; (A) The petitioner does not have a locus standi, (B) There has
been no violation of Fundamental Right, (C) The petitioner is required to exhaust
existed alternative remedy and (D) The Hon’ble court would not be justified in
interfering with a policy decision.

(A) The petitioner does not have a locus standi

[¶2] Locus standi means a place of standing, a right of appearance in a Court of

Justice. It signifies the right to bring an action and to be heard.1 No action lies in the SC
under Art. 32 unless there is an infringement of a Fundamental Right, 2 as the SC has
previously emphasized that “The violation of Fundamental Right is sine qua non of
exercise of right conferred by Art. 32.”3 In Hans Muller of Nurenberg v.
Superintendent, Presidency Jail, Calcutta and Ors.,4 the SC held that only a person
aggrieved can impugn any given piece of legislation under Art. 32. In Jasbhai v.
Roshan,5 the Supreme Court held that only a person who has interest in the subject-
matter of the application may apply. It is submitted that, per curiam Sachidanand
Pandey v. State of West Bengal,6 courts must restrict free flow of case under attractive
name of PIL.

[¶3] Jurisdiction of the Supreme Court under Art. 32 can be invoked only when
Fundamental Right has been infringed.7 No question other than relating to a
Fundamental Right will be determined in a proceeding under Art. 32. 8 Thus, where
there is no infringement of Fundamental Right or scope for enforcement of any
Fundamental Right, the writ petition is not maintainable on the fragile ground. 9 In
addition to this, a person acquires a locus standi, when he has to have a personal or

1
Aiyar Ramanatha, P., Concise Law Dictionary, LexisNexis Buttersworth Wadhwa Nagpur, 2009
(India).
2
Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1974 S.C. 1539 (India).
3
Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 1981 S.C. 344 (India).
4
Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors., A.I.R. 1955 S.C. 367
(India).
5
Jasbhai v. Roshan, A.I.R. 1976 S.C. 578 (India).
6
Sachidanand Pandey v. State of West Bengal, (1987) 2 S.C.C. 295 (India).
7
Gopal Das v. Union of India, A.I.R. 1955 S.C. 1 (India).
8
Coffee Bd. v. Joint C.T.O., A.I.R. 1971 S.C. 870 (India).
9
Federation of Bar Association in Karnataka v. Union of India, (2000) 6 S.C.C. 715 (India).

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individual right which has been violated or threatened to be violated. 10 Since, no right
of petitioner has been infringed, he has no locus standi before the Court. Where writ
petition is challenging the Constitutional validity of any provision, then the petitioner
should file writ petition before High Court under Art. 226 of the Constitution.11

[¶4] Mere apprehension that the petitioner would be deprived of his Fundamental
Right is not enough to invoke the jurisdiction of the Court under Art. 32.12 Unless
satisfactory reasons are there in this regard, filing of petition in such matters directly
under Art. 32 of the Constitution is to be discouraged. 13 It has been held that if person
who comes to Court with a PIL with vested interests, improper motion or actuated by a
desire to win notoriety or cheap popularity are not entitled to file PIL. 14 It is humbly
submitted that delay also affects locus standi of petitioner in filing PIL.15. In order to
preserve the purity and sanctity of PIL the Supreme Court in the year 2010 issued
following directions to be followed before entering entertaining a PIL.16

(B) There has been no violation of Fundamental Right

[¶5] When a person acquires a locus standi, he has to have a personal or individual
right which was violated or threatened to be violated. 17 In BALCO Employees’ Union
(Regd.) v. Union of India,18 the Court held that the only ground on which a person can
maintain a PIL is where there has been an element of violation of Article 21 on human
rights. It is further submitted by the counsel that, Right to privacy is an integral part of
right to life guaranteed under Art. 21 of the Constitution. 19 There cannot be any such
thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead
to anarchy and disorder.20 In present case there was no violation of right to life and
personal liberty21 by the actions of government.
10
Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044 (India).
11
State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 S.C.C. 453 (India).
12
Magan Bhai v. Union of India, (1970) 3 S.C.C. 400 (India).
13
Union of India v. Paul Manickam, A.I.R. 2003 S.C. 4622 (India).
14
Ashok Kumar Pandey v. State of West Bengal, A.I.R. 2004 S.C. 1923 (India).
15
K.R. Srinivas v. R.M. Premchand, (1994) 6 S.C.C. 620 (India).
16
State of Uttranchal v. Balwant Singh Chaufal, A.I.R. 2010 S.C. 2550 (India).
17
Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044 (India).
18
BALCO Employees’ Union (Regd.) v. Union of India, (2002) 3 S.C.C. 333 (India).
19
Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295 (India); Distt. Registrar Collector v. Canara
Bank, (2005) 1 S.C.C. 496 (India).
20
Ram Jethmalani & Ors. v. Union of India & Ors., (2011) 8 S.C.C. 1 (India).
21
Article 21 of the Constitution of Adisthan.

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(C) The petitioner is required to exhaust existed alternative remedy

[¶6] It has been held that since Art. 32 confers “extraordinary” jurisdiction which shall
be brought into use where there is no alternate efficacious remedy is available. 22 The
reason for this is: first, to reduce increasing pendency of cases 23 and second, to inspire
faith in hierarchy of Courts and the institution as a whole. The power to grant writs
under Article 32 is a discretionary power vested in the hands on this Hon'ble Court.24

[¶7] This Hon’ble Court has itself imposed a self-restraint in its own wisdom on the
exercise of jurisdiction under Art. 32 where the party invoking the jurisdiction has an
effective adequate alternative remedy in the form of Art. 226 of the Constitution,
although this Rule is a Rule of convenience and discretion rather than a Rule of law. 25
It is a well settled proposition of law that existence of an alternative adequate remedy is
a factor taken into consideration in a writ petition. 26 In Kanubhai Brahmbhatt v. State
of Gujarat,27 the Supreme Court held that a petitioner claiming of infraction of his
fundamental right should approach High Court rather Supreme Court in the first
instance as High Court under Art. 226 has much wider than the powers of the Supreme
Court under Art. 32 of the Constitution. 28 It was held by the Hon'ble Court in the case
of Confederation of All Nagaland State Services Employees' Assn. v. State of
Nagaland,29 that the writ petitions should be agitated at the first instance before the
High Court of Judicature exercise of its power under Art. 226 of the Constitution.

(D) The Hon’ble court would not be justified in interfering with a policy decision

[¶8] The respondent most humbly submits that the Supreme Court has long held that
interference into policy actions is not within the its jurisdiction 30 as reiterated in the

22
Secretary, Govt. of India v. Alka Shubhash Gadia, 1990 S.C.R, Supl. (3) 583 (India); Avinash Chand
Gupta v. State of Uttar Pradesh, (2004) 2 S.C.C. 726 (India); Union of India v. Paul Manickam, A.I.R.
2003 S.C. 4622 (India).
23
PN Kumar v. Municipal Corp of Delhi, 1988 S.C.R (1) 732 (India).
24
K.D. Sharma v. SAIL, (2008) 12 S.C.C. 481 (India); Dalip Singh v. State of Uttar Pradesh, (2010) 2
S.C.C. 114 (India); Sunil Poddar v. Union Bank of India, (2008) 2 S.C.C. 326 (India).
25
Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 S.C.C. 748 (India).
26
Rashid Ahmed v. Municipal Board, KA.I.R.ana, A.I.R. 1950 S.C. 163 (India).
27
Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1987 S.C. 1159 (India).
28
PN Kumar v. Municipal Corp of Delhi, 1988 S.C.R (1) 732 (India).
29
Confederation of All Nagaland State Services Employees' Assn. v. State of Nagaland, (2006) 1 S.C.C.
496 (India).
30
Directorate of Film Festivals v. Gaurav Ashwin Jain & Ors, Appeal (civil) 1892 of 2007 (India).

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recent Iodine Salt Case.31 It has been held that a writ petition cannot be maintainable if
its sole purpose is to question a policy decision of the Government. 32 The position of
law on the matter of policy decisions is quite clear, from decisions such as BALCO
Employees Union,33 and a host of other cases. The list is truly extensive, 34 as the
underlying principle is sound in law.

Hence, it is humbly submitted before this Hon’ble Court that the instant PIL is not
maintainable.

2. WHETHER ANY DISCRIMINATION BASED ON SEXUAL ORIENTATION

VIOLATES FUNDAMENTAL RIGHTS?

[¶9] It is humbly contended that the discrimination based on Sexual Orientation does
not violate any fundamental Rights. The Respondent seeks to establish that; (A) It does
not violate Right to Equality under Article 14 and 15 of the Adisthan Constitution; (B)
It does not violate Freedom of Speech and Expression under Article 19 of the Adisthan
Constitution and (C) It does not violate Article 21 of the Adisthan Constitution.

(A) It does not violate Right to Equality under Article 14 and 15 of the Adisthan
Constitution

(i) It does not violate Article 14 of the constitution

[¶10] Article 14 has not been violated as (a) Classification is founded on an intelligible
differentia and (b) There is rational nexus between classification and objective sought.

(a) The Classification is founded On an Intelligible Differentia.

[¶11] Intelligible differentia encompasses within its scope whether the classification is
rational and is capable of being understood 35 and that the basis of classification for
judging the validity of the law can be gathered from the surrounding circumstances. 36
31
Academy of Nutrition Improvement v. Union of India, WP(C) 80 of 2006, 4 July 2011 (India).
32
Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v. A.P. Health, Medical, Housing and
Infrastructure Development Corporation, Hyd. and Anr., 2002 (2) A.L.D. 609 (India).
33
BALCO Employees Union (Regd.) v. Union of India, A.I.R. 2001 S.C.W. 5135 (India).
34
S.C.. Cooper v. Union of India, (1970) 3 S.C.R. 530 (India).
35
K. R. Lakshman v. Karnataka Electricity Board, (2001) 1 S.C.C. 442 (India); State of Kerela v. N.M.
Thomas, (1976) 2 S.C.C. 310 (India).
36
Hanif Quareshi v. State of Bihar, A.I.R. 1958 S.C. 731 (India).

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There exists a presumption that the legislature and the executive adequately understand
the needs of its own people and any discrimination or classification it makes are based
on adequate grounds.37 Article 14 forbids class legislation; it does not forbid reasonable
classification of persons by the Legislature for specific ends. Classification in such a
case should be based on an intelligible differentia, some real and substantial
distinction, which distinguishes persons or things grouped together in the class from
others left out of it.38 It has been held by the apex Court that Equal treatment of
unequal’s is not liable to be struck down as discriminatory unless there is a
simultaneous absence of a rational relation to the object intended to be achieved by
law.39

[¶12] In Indira Sawhney v. Union of India,40 it was held that “Equality is one of the
magnificent corner-stones of Indian Democracy”. The underlying object of Article 14
is to secure to all persons, citizens or non-citizens, the equality of status and
opportunity referred to in the Preamble to our Constitution. 41 It is most respectfully
submitted that principle does not take away from state the power of classifying persons
for legitimate purposes.42 The legislature is competent to exercise its discretion and
make classification.43 Differential treatment does not per se constitute violation of
Article 14.44 Any inequality in order to be unconstitutional must be actually and
palpably unreasonable and arbitrary.45 It is not obnoxious and is not open to charge of
denial of equal protection on the ground that it has no application to other persons.46 To
reconcile Constitutional equality with facts of life, classification, gradation, or

37
Id.
38
Laxmi Khandsari v. State of Uttar Pradesh, A.I.R. 1981 S.C. 873 (India).
39
Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1996) 1 S.C.C. 642
(India).
40
Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477 (India).
41
Natural Resources Allocations, Re special Reference Number 1 of 2012, (2012) 10 S.C.C 1 (India).
42
Ameeroonisa Begum v. Mehboob Begum, A.I.R. 1953 S.C. 91 (India); Babulal Ahmtalal Mehta v.
Collector of Customs, Calcutta, A.I.R. 1957 S.C. 877 (India); Gopi Chand v. Delhi Administration,
A.I.R. 1959 S.C. 609 (India); H.P. Gupta v. Union of India, (2002) 10 S.C.C 658 (India).
43
Ankul Chandra Pradhan v. Union of India, (1997) 6 S.C.C 1 (India)
44
1 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 813 (AR Lakshmanan, V.R.
Manohar & Bhagabati Prasad Banerjee ed.,14th Edition, Lexis Nexis, 2009).
45
Chiranjit Lal Chwodhury v. Union of India, A.I.R. 1951 S.C. 41, p.66 (India).
46
State of Bombay v. F.N. Balsara A.I.R. 1951 S.C. 318 (India).

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differentiation is inevitable.47 It is humbly submitted that Art. 14 denies equal

protection only when there is no reasonable basis for differentiation.48

(b) There is rational nexus between classification and objective sought

[¶13] In the case of Budhan Chaudhary v. State of Bihar,49 the Supreme Court held that
‘although class legislation is prohibited under Article 14 but it does not forbid
reasonable classification’. In the case of Ram Krishna Dalmia v. Justice S R
Tendolkar,50 wherein the true meaning and scope of Art. 14 was reiterated as follows;
"It is now well established that while Art. 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation. It is contended that the law can
make and set apart the classes according to the needs and exigencies of the society and
as suggested by experience.51 If the legislative policy is clear and definite and as an
effective method of carrying out that policy a discretion is vested by the statute upon a
body of administrators or officers to make selective application of the law to certain
classes or groups of persons, the statute itself cannot be condemned as a piece of
discriminatory legislation.52 Further, A Five Judge bench of the Hon’ble Supreme
Court in the case of E.P. Royappa v. State of T.N.53 has explained the term arbitrary as
very simply the lack of any reasoning, which is not present in the instant case as in the
instant case there has been a detailed and logical explanation provided.

(ii) It does not violate Article 15 of The Constitution.

[¶14] It is contended that there is no violation of Article 15 as it is not disproportionate

and discriminatory in its impact and there is compelling state interest involved. The
Supreme Court laid down in Gobind v. State of M.P.54 that privacy claims deserve to be
examined with care and to be denied only when an important countervailing interest is
47
Champakam DorA.I.R.ajan v. State of Madras, A.I.R. 1951 Mad. 120; TL VENKATARAMA
AIYAR, EQUALITY BEFORE LAW (The year Book of Legal Studies, 1960); T Devadasan v. Union
of India, A.I.R. 1964 S.C. 179, pg.185 (India).
48
Ameeroonisa Begum v. Mehboob Begum, A.I.R. 1953 S.C. 91 (India); Babulal Ahmtalal Mehta v.
Collector of Customs, Calcutta, A.I.R. 1957 S.C. 877 (India); Ashoka Smokeless Coal India (P.) Ltd v.
Union of India ¶ 161, (2007) 2 S.C.C 640, 697 (India).
49
Budhan Chaudhary v. State of Bihar, A.I.R. 1955 S.C. 191 (India).
50
Ram Krishna Dalmia v. Justice S R Tendolkar, 1959 S.C.R 279 (India).
51
Laxmi Khandsari v. State of Uttar Pradesh, A.I.R. 1981 S.C. 873 (India).
52
MP JAIN, INDIAN CONSTITUTIONAL LAW, 917 (7th ed. 2015).
53
E.P. Royappa v. State of T.N., (1974) 4 S.C.C 3 (India).
54
Gobind v. State of M.P., A.I.R. 1975 S.C. 1378 (India).

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shown to be superior, or where a compelling state interest is shown. A law infringing a

fundamental privacy right must satisfy the compelling state interest test i.e., whether
the state interest is of such paramount interest as would justify an infringement of the
right. In such a situation, the state interference must be justified and proportional. 55 It is
contended that homosexuality is considered against cultural norms of our society and
hence is crucial for maintaining public decency and morality.56

(B) It does not violate Freedom of Speech and Expression under Article 19 of the
Adisthan Constitution

[¶15] It is submitted that Art. 19 of the Constitution is not absolute, 57 and reasonable
restrictions can be placed58 in interest of general public.59 It is submitted that for a
restriction to be valid, it must have a direct and proximate nexus with the object which
the legislation seeks to achieve and the restriction must not be in excess of that object. 60
The reasonableness of the restraint would have to be judged by the magnitude of the
evil it seeks to restrain, curb or eliminate.61

[¶16] It is necessary to see whether a class which comes into contact with such
knowledge suffer in their moral outlook or might have impure or lecherous thoughts
aroused in their minds.62 The Supreme Court has further widened the scope of public
decency and morality by saying that it is not confined to sexual morality alone and the
ordinary dictionary meaning indicates that an action must be in conformity with the
current standards of behavior or propriety.63 Restriction was for Public interest. ‘Public
interest’ means a subject matter in which the rights of the public or section of the

55
Commissioner of Central Excise Jamshedpur v. Dabur (India) Ltd., (2005) 3 S.C.C. 646 (India);
Sushil Kumar Sharma v. Union of India and Ors. (2005) 6 S.C.C. 281 (India); Thangal Kunu Musaliar v.
M. Venkatachalam Potti, Authorised Official and Income Tax Officer and Anr., (1956) 29 ITR 349
(S.C.) (India); Budhan Choushary and Ors. V. State of Bihar, 1955 CriLJ 374 (India); Mafatlal
Industried Ltd. And Ors. V Union of India and Ors., 1997(89) ELT 247 (S.C.) (India); Collector of
Customs v. Nathella Sampathu Chetty 1983 ECR 2198D (S.C.) (India); H.R.E. v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Meth (1954) 1 S.C.R 1005 (India).
56
Suresh Kumar Koushal v. Naz Foundation (2014) 1 S.C.C. 1 (India).
57
Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., (2017) 10 S.C.C. 1 (India).
58
State of Kerala v. Peoples Union for Civil Liberties, (2014) C.D.J. 831 (S.C.) (India).
59
Adisthan Const. art. 19 cl. 5.
60
Arunachala Nadar v. State of Madras, A.I.R. 1950 S.C. 300 (India); Papnasam Labour Union v.
Madura Coats Ltd, A.I.R. 1995 S.C. 2200 (India).
61
Collector of Customs v. Sampathu Chettty, A.I.R. 1963 S.C. 316 (India).
62
Chandrakant Kalyandas Kakodkar v. State of Maharashtra, A.I.R. 1970 S.C. 1390 (India).
63
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, A.I.R. 1996 S.C. 1113 (India).

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public is interested,64 a concern which is advantageous to people as a whole. 65 ‘Interest

of general public’ is a comprehensive expression intended to achieve socio-economic
justice for the people by the State. 66 The Supreme Court observed in Jagmohan Singh
v. State of U.P.,67 that there remain grave doubts about the expediency of transplanting
Wes tern experience in our country and mere acceptance of a way of life in another
nation cannot be the basis for change in our perceptions. In instant case, it is restriction
under Article 19 (2) on basis of decency and morality as it would result in detrimental
effects on India’s social structure and the institution of marriage.

(C) It does not violate Article 21 of the Adisthan Constitution

[¶17] It is submitted that no right in Part III of Constitution is absolute, 68 and

reasonable restrictions can be placed.69 Reasonable restriction can be imposed on
exercise of right to life. While determining reasonableness of a restriction, directive
principles are taken into consideration.70 An action taken by Government with view to
giving effect to any one or more Directive Principles would ordinarily qualify for
regarded as reasonable.71

(i) It qualifies the test of substantive due process

[¶18] Article 21 provides that the right to life and liberty is subject to procedure
prescribed by law.72 The requirement of substantive due process read into Constitution
through a combined reading of Art. 14, 21 and 19 and it has been held as a test required
to be satisfied while judging constitutionality of a statute. 73 The due process
requirement was laid down by the SC in the celebrated case of Maneka Gandhi v.
Union of India74 which states that apart from the prescription of some kind of
64
Kuttisankaran NA.I.R. v. State of Kerala, A.I.R. 1965 Ker. 161 (India).
65
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 S.C.C. 481 (India).
66
Kharak Singh v. The State of U. P. & Others, A.I.R. 1963 S.C. 1295 (India); Bachan Singh v. State of
Punjab, A.I.R. 1980 S.C. 898 (India); Waman Rao v. Union of India, (1981) 2 S.C.C. 362 (India); Court
on its own motion v. Union of India, (2012) 12 S.C.C 307 (India).
67
Jagmohan Singh v. State of U.P., (1973) 1 S.C.C. 20 (India).
68
Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., (2017) 10 S.C.C. 1 (India).
69
Ibid 64.
70
State of Bombay v. FN Balasara, A.I.R. 1951 S.C. 318 (India); Quraishi v. State of Bihar, A.I.R. 1958
S.C. 731 (India).
71
Kasturi Lal Lakshmi Reddy v. State of J&K, A.I.R. 1992 S.C. 1980 (India).
72
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 (India).
73
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 S.C.C. 1 (India).
74
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 (India).

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procedure for curtailment of one’s right , the procedure must be just and reasonable.
Further, it must satisfy the requirements of other provisions of the Constitution, like
Articles 14 and 19. No uniform test can be culled out to classify acts as “carnal
intercourse against the order of nature” 75 and yet a reasonable, just and fair procedure
has been established. It follows a substantive due process that is reasonable and non-
arbitrary and is thus not violative of one’s Right to life and liberty.

(ii) It does not violate one’s Right to Privacy.

[¶19] It is contended that Right to Privacy is not violated as (a) Right to Privacy is not
absolute, and (b) It can be curtailed by following due process of law.

(a) Right to Privacy is not absolute

[¶20] The Constitution does not grant in specific and express terms any right to privacy
as such.76 It has merely been culled by the Supreme Court from Art. 21 and several
other provisions of the Constitution read with the Directive Principles of State Policy. 77
The scope of the Right of Privacy, as also the permissible limits upon its exercise, have
been laid down in the case of Kharak Singh v. State of UP and others, 78 which held
“Our Constitution does not in terms confer any like constitutional guarantee.” In Mr. X
v. Hospital Z,79 it was held that Right to Privacy is not absolute. An invasion of life or
personal liberty must meet the three-fold requirement of i) legality, which postulates
the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them; and Privacy has both positive and negative content.

(b) It can be curtailed by following due process of law

[¶21] In Govind v. State of Madhya Pradesh,80 the Supreme Court considered the
constitutional validity of a regulation which provided for surveillance by way of
several measures indicated in the said regulation. Further, it was held, “right of privacy

75
Mihir alias Bhikari Charan Sahu v. State, Cri LJ 488 (India).
76
MP JAIN, INDIAN CONSTITUTIONAL LAW, 1168 (7th ed. 2015).
77
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 (India).
78
Kharak Singh v. State of UP and others, (1964) 1 S.C.R 332 (India).
79
Mr. X v. Hospital Z, (1998) 8 S.C.C. 296 (India).
80
Govind v. State of Madhya Pradesh, A.I.R. 1975 S.C. 1378 (India).

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must be subject to restriction on the basis of compelling state interest.” As has already
been contended in the previous sub-issue, the state in this case has compelling interest
in the form of ‘public morality and decency’.

Hence, it is humbly submitted that the discrimination based on Sexual Orientation does
not violate any fundamental Rights.

3. WHETHER THE DIRECTION SHOULD BE GIVEN FOR THE INCLUSION

OF SAME SEX MARRIAGE IN THE SPECIAL MARRIAGE ACT, 1954?

[¶22] It is humbly contended that the direction should not be given for the inclusion of
same sex marriage in Special Marriage Act, 1954. The Respondent seeks to establish
that; (A) Same sex marriage is against the Natural Law; (B) Same-sex marriage will
defeat the very purpose of marriage; (C) It denies the child either Father or Mother and
(D) Presumption of constitutionality is in the favor of the legislation.

(A) Same sex marriage is against the Natural Law

[¶23] Natural law is a philosophy of law that focuses on the laws of nature, it is both –
rational and reasonable. In addition, natural law was found by humans on their disposition
of reasoning and choosing between good and bad. Hence, it is said that this law plays a
significant role in establishing moral and ethical standards. It may be argued that morality
and law are two different things and it is not necessary that what may be morally wrong be
against the law, but it is necessary that the law made should be morally correct as per the
society. Natural law proposes that laws are more of a logical progression from morals.
Natural law exists regardless of what laws are enacted.

[¶24] In the present context, if we allow the same sex marriage it will go against the
social morality because traditionally, marriage is a sacred institution between a man
and a woman, has been viewed as vital to the preservation of morals. Legal recognition
of same-sex “marriage” would necessarily obscure certain basic moral values, devalue
traditional marriage, and weaken public morality.

(B) Same-sex marriage will defeat the very purpose of marriage

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[¶25] It is humbly submitted before the hon’ble court that Marriage is the social unit
that is based between a man and woman which is the building block of the family and
by extension the society.81 Marriage, according to Farlex legal dictionary, can be
defined as: “The legal status, condition or relationship that results from contract by
which one man and one woman, who have capacity to enter into such agreement,
mutually promise to live together in the relationship, until the legal termination of
relationship.”82 This simply states that marriage is legally sanctioned contract between
a man and a women. Entering into a marriage contract changes the legal status of both
the parties, giving rights and obligations. Any Public Policy or legislation is based on
the favour of marriage based on the belief that they preserve the family unit.

[¶26] Marriage is a scared institution as the primary intent or purpose of marriage is

procreation of child.83 Edward Westermarck in his “History of Human Marriage”
defines marriage as “the more or less durable connection between male and female
lasting beyond the mere act of propagation till after the birth of offspring.” 84
Malinowski says that marriage is a “contract for the production and maintenance of
children.”85 According to Anderson and Parker, “Marriage is the sanctioning by a
society of a durable bond between one or more males and one or more females
established to permit sexual intercourse for the implied purpose of the parenthood.” 86
In the present context, Same-sex “marriage” opposes nature. Two individuals of the
same sex, regardless of their race, wealth, stature, erudition or fame, will never be able
to marry because of an insurmountable biological impossibility. If we look in the
history of the marriage in the Hindu text then we will see that, wife is very source of
the Purusharthas , not only of Dharma, Artha and Kama but even of Moksha. Those
that have wives can fulfil their due obligations in this world; those that have wives can
be happy, and those that have wives can lead a full life.” 87

81
Marriage-A Sacred Institution, https://www.thusiasdaevangel.com/thusian-sda-orientation-
blog/marriage-a-sacred-institution (last accessed on; 15th August 2020)
82
https://legal-dictionary.thefreedictionary.com/marriage
83
The Sacred Institution of Marriage, https://www.manblunder.com/articlesview/the-sacred-institution-
of-marriage (last accessed on 15th August 2020)
84
C.N. Shankar Rao, Sociology, An Introduction to Social Thought, p.327 (6h ed. 2007).
85
Ibid.
86
Anderson and Parker, Society p.144.
87
Mahabharata, Adi Parva, 74, 40-41.

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[¶27] Further, the child is given a very important place, the husband accepts the palm
of the wife in order to get a high breed progeny. The chief aim of marriage is
procreation.88 Petitioner, propose the union between two men or two women. This
denies the self-evident biological, physiological, and psychological differences between
men and women which find their complementarity in marriage. It also denies the
specific primary purpose of marriage: the perpetuation of the human race and the raising
of children.89 Same-sex marriage would only further undercut the procreative norm
long associated with marriage. Same-sex “marriage” is intrinsically sterile. If the
“spouses” want a child, they must circumvent nature by costly and artificial means or
employ surrogates. The natural tendency of such a union is not to create families.
Therefore, we cannot call a same-sex union marriage and give it the benefits of true
marriage.

(C) It denies the child either Father or Mother

[¶28] It is in the child’s best interests that he be raised under the influence of his natural
father and mother. This rule is confirmed by the evident difficulties faced by the many
children who are orphans or are raised by a single parent, a relative, or a foster parent. 90
The unfortunate situation of these children will be the norm for all children of a same-
sex “marriage.” A child of a same-sex “marriage” will always be deprived of either his
natural mother or father. He will necessarily be raised by one party who has no blood
relationship with him. He will always be deprived of either a mother or a father role
model.91 Further, 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.

[¶29] Moreover, children will be denied of either a mother or father. The roles of both
parents are inevitable and essential to proper growth and well-being of a child. Further,
from a sociological perspective, primary purpose that marriages serve is to secure a
mother and father for each child who is born into society. The absence of sexual
88
Rajendra.K.Sharma, Indian Society, Institutions and Change, p.107.
89
10 Reasons Why Homosexual “Marriage” is Harmful and Must be Opposed,
https://tfpstudentaction.org/blog/10-reasons-why-homosexual-marriage-is-harmful-and-must-be-
opposed#:~:text=Legal%20recognition%20of%20samesex%20%E2%80%9Cmarriage%E2%80%9D
%20would%20necessarily%20obS.C.ure,the%20struggle%20for%20racial%20equality%20in%20the
%201960s.
90
Ibid.
91
Ibid

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complementarity in these union creates obstacles in normal development of children

who are placed in care of such parents. They would be deprived of experience of either
fatherhood or motherhood. This is gravely immoral and in open contradiction to
principle, recognised by United Nation Convention on rights of children, that best
interest of children as weaker and more vulnerable party is to be of paramount
consideration in every case.92 Furthermore, 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. 

(D) Presumption of constitutionality favor’s the legislation

[¶30] It is submitted before the hon’ble court that same sex marriage (SSM) is not
permissible under the SMA, 1954 and it is against contemporary social morality.
Further, Section 4(c) of this Act support this statement and it is constitutional on the
ground that there is intelligible differentia and reasonable classification has been made
to achieve the objective of this Act. It is most respectfully submitted that the
presumption while dealing with constitutional validity of any provision must be in
favour of it being valid.93 It is presumed that the intention of the legislature is always
true.94

[¶31] It’s obligation of Court to promote intention of legislature. 95 Language employed

in statute is determinative factor of legislative intent. 96 Presumption of constitutionality
of laws is that when any law is under judicial review, it is for the person challenging its
constitutionality to establish its unconstitutionality.97 The burden is on the Plaintiff to

92
Anuradha Parasar, Homosexuality In India – The Invisible Conflict, available at
http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India
%20-%20The%20invisible%20conflict.pdf#:~:text=Homosexuality%20In%20India
%20%E2%80%93%20The%20Invisible%20Conflict%20The,relationships%2C%20although%20most
%20marriage%20statutes%20use%20gender-neutral%20language.
93
Namit Sharma v. Union of India, (2013) 10 S.C.C. 359 (India).
94
Competition Commission of India v. Steel Authority of India Ltd., (2010) 10 S.C.C. 744 (India).
95
Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 S.C.C. 216 (India).
96
Mohammed Shahabuddin v. State of Bihar, (2010) 4 S.C.C. 653 (India); J.P. Bansal v. State of
Rajasthan, (2003) 5 S.C.C. 134 (India); State v. Parmeshwaran Subramani (2009) 9 S.C.C. 724 (India).
97
Madhu Limaye v. Sub-Divisional Magistrate, Monghyr & Ors., A.I.R. 1971 S.C. 2486 (India).

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establish the invalidity of legal provision to such a degree to leave no reasonable

doubt.98

[¶32] The Apex Court in the case of Govt. of A.P. v. Smt. P. Laxmi Devi, 99 held that
invalidating legislation is a grave step and should never be taken lightly. It is submitted
that presumption is always in favor of constitutionality of an enactment 100 and it is for
the petitioner to show how his fundamental right has been infringed, failing which, his
petition will be dismissed.101 It must be presumed that legislature understands and
correctly appreciates the need of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations are based on adequate
grounds.102 Presumption of constitutionality is so strong that in order to sustain it, the
Court may take into consideration matters of common knowledge, history of times &
may assume state of facts which can be conceived existing at the time of legislation. 103
Mere discrimination or inequality of treatment does not amount to discrimination
within ambit of Article 14.104 Reasonableness is to be adjudicated with reference to
purpose and object of legislation and not on spasmodic sentiments of fanciful
perception.105

[¶33] For an act not to violate Art. 14, there must not be any substantive
unreasonableness106 in it, it should not be manifestly arbitrary 107 and it should fulfil the
following two conditions: (a) Intelligible differentia which distinguishes persons or
things that are grouped together from other left out in the group 108 This is done by
examining the purpose and policy of the act, which can be ascertained from its title,

98
Chandrakant Kalyandas Kakodkar v. State of Maharashtra, A.I.R. 1970 S.C. 1390 (India).
99
Govt. of A.P. v. Smt. P. Laxmi Devi, A.I.R. 2008 S.C. 1640 (India).
100
Mohan Choudhary v. Chief Commissioner, Tripura, A.I.R. 1964 S.C. 173 (India).
101
Ramcharitra v. High Court, Patna, A.I.R. 1976 S.C. 226 (India).
102
Ramkrishna Dalmia v. Justice Tendolkar and Ors., A.I.R. 1958 S.C. 538 (India).
103
Union of India and Ors. vs. Nitdip Textile Processors Pvt. Ltd. and Ors., MANU/S.C./1291/2011
(India); Amar Singh & Ors. v. State of Bihar & Ors, MANU/BH/0218/200 (India); Charanjit Lal v. UOI,
A.I.R. 1951 S.C. 41 (India).
104
D.D. BASU, SHORTER CONSTITUTION OF INDIA, 62, (13 th ed., vol. 1, 2001).
105
Amar Singh and Ors. v. The State of Bihar and Ors., MANU/BH/0218/2007 (India).
106
Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board and Ors., A.I.R. 2007 S.C. 2276
(India).
107
Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group, A.I.R. 2006
S.C. 1489 (India).
108
Pathumma v. State of Kerala, A.I.R. 1979 S.C. 771 (India).

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preamble109and provisions.110; (b) Rational nexus111that connects the object sought to be

achieved by the act with the intelligible differentia ascertained in (a). 112 (1) The
Classification is founded on an Intelligible Differentia: Art. 14 forbids class legislation;
it does not forbid reasonable classification of persons by the Legislature for specific
ends. Classification in such a case should be based on an intelligible differentia, some
real and substantial distinction, which distinguishes persons or things grouped together
in the class from others left out of it. 113; (2) That there is a Rational Nexus between
Classification and Objective Sought: It is contended that the law can make and set
apart the classes according to the needs and exigencies of the society and as suggested
by experience. Mere differentiation or inequality of treatment does not per se amount
to discrimination and before considering inequality of treatment, the object of the
legislation has to be considered.114 If the legislative policy is clear and definite and as
an effective method of carrying out that policy a discretion is vested by the statute upon
a body of administrators or officers to make selective application of the law to certain
classes or groups of persons, the statute itself cannot be condemned as a piece of
discriminatory legislation.115

[¶34] In the present context, Section 4(c) in The Special Marriage Act, 1954 states
that the male has completed the age of twenty-one years and the female the age of
eighteen years; which clear cut means that the solemnization of marriage is between
the male and female. This classification has been made on the basis of intelligible
differential and there is rational nexus with object sought to achive, as same-sex
“marriage” would devalue traditional marriage, and weaken public morality, It also
denies the specific primary purpose of marriage i.e. the perpetuation of the human race
and the raising of children. It may have positive repercussions on relationship between
homosexual but giving them legal recognition is not reasonable to invoke. It is
something quite different to hold that activities which do not represents a significant or

109
Kausha ON v. Union of India, A.I.R. 1978 S.C. 1457 (India).
110
P. B. Roy v. Union of India, A.I.R. 1972 S.C. 908 (India).
111
Kedar Nath Bajoria v. State of W.B, A.I.R. 1953 S.C. 404 (India).
112
Hanif v. State of Bihar, A.I.R. 1958 S.C. 731 (India).
113
Laxmi Khandsari v. State of Uttar Pradesh, A.I.R. 1981 S.C. 87 (India).
114
Thiru Muruga Finanace v. State of Tamil Nadu, A.I.R. 2000 Mad 137 (India).
115
MP JAIN, INDIAN CONSTITUTIONAL LAW, 917 (7th ed. 2015).

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positive contribution to development of human in society can receive specific &

categorical legal recognition by State116.

Hence, it is humbly submitted that that the direction should not be given for the
inclusion of same sex marriage in Special Marriage Act, 1954.

PRAYER

It is hereinafter humbly prayed before this Hon’ble Supreme Court of Adisthan that in
the light of issue raised, argument advanced, authorities cited and pleadings made, the
Hon’ble Court may be pleased to adjudge and declare:

1. That, the writ petition in the form of PIL is not maintainable under Art. 32 of the
Constitution of Adisthan.
2. That, any discrimination based on Sexual Orientation does not violate any
Fundamental Rights.
3. That, the direction should not be given for the inclusion of same sex marriage in
Special Marriage Act, 1954.

OR / OTHERWISE

PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT

MAY DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE COUNSELS SHALL FOREVER PRAY.

Sd/-

(Counsel for the Respondent)

116
Ibid 92.

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