Team Code- 04

NHRC – CNLU NATIONAL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

In The Connected Matters Of

ARTICLE 32 OF THE CONSTITUTION OF INDIANA

i. Indradhanush……..………………….………………………..……Petitioner
v/s
Union of Indiana……...……………………..…………...………Respondents

ii. Indradhanush……..………………….………………………..……Petitioner
v/s
Union of Indiana……...……………………..…………...………Respondents

ARTICLE 136 OF THE CONSTITUTION OF INDIANA

iii. Mr. Ashish………………………………………………….……….Appellant

v/s
Rachel………..……………………………………………..……..Respondent

SEC. 18(B) OF PROTECTION OF HUMAN RIGHTS ACT, 1993

iv. Bindu……………………………………………………………Complainant
V/s
State of Johana….……………………………………………….Respondents

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF INDIANA

WRITTEN SUBMISSION ON BEHALF OF PETITIONER

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TABLE OF CONTENTS

Table of Contents
TABLE OF CONTENTS ......................................................................................................... 2

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

INDEX OF AUTHORITIES .................................................................................................... 5

STATEMENT OF JURISDICTION ........................................................................................ 9

STATEMENT OF FACTS ..................................................................................................... 10

ISSUES RAISED ................................................................................................................... 11

SUMMARY OF ARGUMENTS ........................................................................................... 12

ARGUMENTS ADVANCED ................................................................................................ 13

I. WHETHER THE PRESENT BATCH OF PETITIONS ARE MAINTAINABLE OR

NOT? .................................................................................................................................... 13

i. Writ Petitions filed by the petitioner “Indradhanush” against Union of Indiana. ... 13

II. CAN LEGAL RECOGNITION BE GRANTED TO SAME-SEX MARRIAGE? ...... 18

i. The recognition of same sex marriage is permissible under the Special Marriage
Act, 1954. .......................................................................................................................... 18

ii. Denial of such recognition is in grave violations of fundamental rights and human
rights. ................................................................................................................................ 22

III. CAN THE STATE OF JOHANA BE MADE ACCOUNTABLE FOR THE

INJUSTICE CAUSED TO THE MEMBERS OF LGBTQIA+ COMMUNITY?............... 30

IV. ASHISH CANNOT BE HELD LIABLE FOR DEFAMATION ............................. 34

i. The present SLP is maintainable............................................................................... 34

ii. No cognizance could have been taken by the magistrate .......................................... 36

iii. There was no identifiable class that was defamed. ............................................... 37

iv. There was no mens rea to defame. ............................................................................ 38

V. BLOCKING OF INDRADHANUSH’S ACCOUNT BY THE OFFICIAL ACCOUNT

OF MINISTERS ON “Z.COM” IS UNLAWFUL ............................................................... 40

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v. Official account of the minister is an instrumentality of state .................................. 40

vi. Article 19 of the Constitution of Indiana has been violated. ..................................... 40

PRAYER ................................................................................................................................ 44

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LIST OF ABBREVIATIONS

AIR All India Reporter

& And
Anr. Another
Art. Article
CBI Central bureau of Investigation
Co. Company
Ed. Edition
HC High Court
Hon’ble Honourable
Id. Ibid
IT Act Information Technology Act, 2000
MP Madhya Pradesh
Mad. Madras
Ors Others
¶ Paragraph
¶¶ Paragraphs
Sec. Section
§ Section
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
vs./v. Versus
Vol. Volume

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INDEX OF AUTHORITIES
Cases

A.V. Papayya Sastry v. Government of Andhra Pradesh ........................................................ 34

Ajay Hasia vs Khalid Mujib .................................................................................................... 40
Anita Thakur v. State of J&K .................................................................................................. 31
Anuradha Bhasin v. Union of India ......................................................................................... 42
Ashok Kumar Pandey v. State of West Bengal ....................................................................... 15
Balasaheb Keshav Thackeray v. State of Maharashtra ............................................................ 36
Bandhua Mukti Morcha v. Union of India............................................................................... 15
Bennett Coleman & Co. v. Union of India .............................................................................. 40
Bharat Bank Ltd. v. The Employees of Bharat Bank Ltd. ....................................................... 35
Bodhisattawa v. Subhra Chakraborty, .................................................................................... 16
CIT v. Mahaliram Ramjdas...................................................................................................... 21
D.C. Wadhwa v. State of Bihar................................................................................................ 15
Daryao v. State of Uttar Pradesh, ............................................................................................ 17
Deepak Sibal v. Punjab University .......................................................................................... 23
Federation of Bar Association in Karnataka v. UOI ................................................................ 14
Fertilizer Corporation Kamgar Union (regd.) Sindri V. ......................................................... 16
G. Narasimhan v. T.V. Chokkappa .......................................................................................... 36
Ganesh Nand v. Swami Divyanand ......................................................................................... 36
Gang-Rape Ordered by Village Kangaroo Court in W.B., In re.............................................. 33
IIT Kharagpur and ors. V. Soutrik Sarangi and ors. ................................................................ 35
Kaushal Kishore V/s State of UP ............................................................................................. 32
Kavalappara Kottarathil Kochunni alias Moopil Nair v. The State of Madras ...................... 17
Lalita Kumar V/s State of U.P ................................................................................................. 33
M. C. Mehta & Another v. Union of India & Others ............................................................... 13
Mohini v State of Karnataka, AIR 199 .................................................................................... 17
Narrottamdas v Maganbhai ...................................................................................................... 37
National Human Rights Commission v. State of Arunachal Pradesh ...................................... 32
National Legal Services Authority v. Union of India .............................................................. 23
Navtej Singh Johar v. Union of India ...................................................................................... 23
P.N Bhagwati in S. P. Gupta v. President of India and Ors ..................................................... 16

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People’s Union for Democratic Rights and Others v. Union of India & Others ..................... 13
Prem Chand Garg v. Excise Commissioner, UP, AIR ............................................................. 16
Prof. Imtiaz Ahmad v. Durdana Zamir .................................................................................... 38
Public Services Tribunal Bar Association v. State of U.P. ...................................................... 14
Rajender Kumar Jain v. state ................................................................................................... 35
Rakesh Vaishnav v. Union of India ......................................................................................... 32
Ram Jethmalani vs Union of India........................................................................................... 30
Ramdas Athawale v. Union of India ........................................................................................ 14
Retd. Justice K.S. Puttaswamy v. Union of India .................................................................... 27
Romesh Thapar v. State of Madras, AIR 1950 SC 124. .......................................................... 17
Rustom Cavasjee Cooper v. Union of India ............................................................................ 25
S. Khushboo v. Kaniamal ........................................................................................................ 39
S.P.Gupta v. Union of India ..................................................................................................... 40
Sahib Singh Mehra vs State Of Uttar Pradesh ......................................................................... 37
Sakal Papers (P) Ltd. v. Union of India ................................................................................... 25
Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal .. 41
Shafin Jahan v. Asokan K.M. .................................................................................................. 26
Shaha v. Dardiryan................................................................................................................... 39
Shakti Vahini v. Union of India ............................................................................................... 26
Shayara Bano v. Union of India ............................................................................................... 24
Shreya Singhal v. Union of India ............................................................................................. 41
SR Bommai vs Union of India ................................................................................................. 42
SRTA v. D.P. Sharma .............................................................................................................. 19
State of UP v Harish Chandra & Ors ....................................................................................... 35
State of Uttar Pradesh v. Raj Narain ........................................................................................ 41
State of W.B. v. Anwar Ali Sarkar .......................................................................................... 23
Subramanian Swamy v. Union of India ................................................................................... 38
Union of India v. Assn. for Democratic Reforms .................................................................... 42
Venkataswami Naidu v. R. Narasram Naraindas..................................................................... 21
Zahira Habibullah Sheikh v. State of Gujarat .......................................................................... 34

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International Cases

Black Clawson International Ltd. V. Papierwerke Waldhof Aschaffenburg........................... 21

Crawford v. Spooner ................................................................................................................ 22
National Coalition for Gay and Lesbian Equality v. Minister of Justice ................................. 28
Obergefell v. Hodges ............................................................................................................... 21
Oliari v. Italy ............................................................................................................................ 29
R v. Secretary of state for foreign and Commonwealth affairs ............................................... 18
Sussex Peerage Case ................................................................................................................ 19

Other Authorities

European Convention on Human Rights, 1953 ....................................................................... 29

International Covenant on Civil and Political Rights, 1966 .................................................... 29
Universal Declaration of Human Rights, (1948) ..................................................................... 29
Yogyakarta Principles……………………………………………………………….…….…29

Articles

Brandon Ambrosino, “The Invention of Heterosexuality”, British Broadcasting Company .. 24

Dominic McGoldrick, “The Development and Status of Sexual Orientation Discrimination
under International Human Rights Law”, Human Rights Law Review, Vol. 16 (2016). .... 29
Human Rights Committee, General Comment No.31: The Nature of the General Legal
Obligation Imposed on States Parties to the Covenant ........................................................ 34
Justice Leila Seth, “A mother and a Judge speaks out on Section 377”, The Times of India . 23
Kameshwar Choudhary, “Anatomy of the Special Marriage Act”, 26(52) Economic &
Political Weekly 2981, 2983 (1991). ................................................................................... 18
Zaid Al Baset, “Section 377 and the Myth of Heterosexuality”, Jindal Global Law Review,
Vol. 4 (2012). ....................................................................................................................... 24

BOOKS REFERRED
1. Arvind P. Datar, Commentary on the Constitution of India 542 (2nd ed. 2007)
2. Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency, 2016).
3. Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis, 2010).

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4. H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law Publication,2015).
5. Justice UL Bhatt, Lectures on Indian Evidence Act, (Universal LawPublication,2015).
6. MP Jain, Indian Constitutional Law, (7th Ed., Lexis Nexis, 2016).
7. V.N. Shukla's, Constitution of India, (12th Ed., Eastern Book Company, India 2013).

DICTIONARIES REFERRED
1. Garner, Black’s Law Dictionary, (9th Ed. Thomus & West, U.S.A 1990).
2. P Ramanatha Aiyar, The Law Lexicon, (2nd Ed. Lexis Nexis, 2006)

ONLINE SOURCES
1. www.lexisnexis.com
2. www.liiofindia.org.
3. www.manupatrafast.in
4. www.scconline.com
5. www.supremecourtofindia.nic.in
6. www.westlawindia.com
7. www.JSTOR.com
8. www.heinonline.org
9. www.westlawasia.com

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STATEMENT OF JURISDICTION

This Hon’ble court has clubbed the present batch of petitions/appeals. The respective
jurisdiction for each petition is as follows –

i. Indradhanush v/s Union of Indiana

The petitioner has approached the Hon’ble Supreme Court of Indiana to hear and
adjudicate over the instant matter under Article 32 of the Constitution of Indiana.
The present petition has been filed as a public interest litigation under Article 32 of the
Constitution of India.

ii. Ashish v/s Rachel

The appellant has filed the present appeal against the order of conviction passed by the
learned trail court for the offence envisaged under Section 499 of the Indiana Penal
Code. Aggrieved by the judgment of the trial court, the appellant has preferred the
present the leave of this Hon’ble court under Article 136 of the Constitution of
Indiana.

iii. Bindu V/s State of Johana

The National human rights Commission, a statutory body under the Protection of
Human Rights Act, 1993 took \cognizance of the events happened in the State of Johana
pursuant to complaint filed by the complainant and conducted inquiry under section 12
of the aforesaid Act. Consequently, the learned commission has referred the matter to
this Hon’ble court for appropriate directions under section 18(b) of the Protection of
Human Rights Act, 1993.

iv. Indradhanush V/s Union of Indiana.

The petitioner has approached the Hon’ble Supreme Court of Indiana to hear and
adjudicate over the instant matter under Article 32 of the Constitution of Indiana.
The present petition has been filed by the petitioners for being aggrieved against the
actions of the ministers of the union government thus violating their fundamental rights.

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STATEMENT OF FACTS

1. Indiana, officially the Republic of Indiana is a country in South Asia. Marriage is considered
as one of the most important concepts of the Indiana society. In Indiana, marriage is governed
by different laws; all of them limit the scope of marriage between a couple (biological male and
female). Although same-sex marriages are not expressly prohibited in India, they lack legal
recognition and regulation.
2. It was announced by the members of the LGBTQIA+ community on social media that a
peaceful protest will be organized by them in Johana, which is the capital of Indiana, on
February 10, 2023, demanding legal recognition for the same-sex marriage as marriage is a
basic human right. In response, a social media user named Ashish posted that homosexuality is
nothing but a psychological illness and that members of the LGBTQIA+ community should
seek medical treatment. Aggrieved by this post, Rachel registered a case against Ashish,
claiming that the post by Ashish was defamatory. Ashish argued in court that he had exercised
his freedom of speech and expression and had no mala fide intention. The trial court found
Ashish guilty of defamation. Ashish has challenged the decision of the trial court in the
Supreme Court by filing a special leave petition.
3. An organization named “Saving the Tradition” announced that it would not allow the members
of the LGBTQIA+ community to conduct protests On the day of the protest, the members of
“Saving the Tradition” attacked the protesters, and many of them were injured. One of the
victims, named Bindu, decided to approach the National Human Rights Commission, alleging
that the state failed to protect them in spite of the previous threat. The students of CIT being
the victims of the violence by “Saving the Tradition” and the state’s inaction to protect them
decided to start a collective organization named “Indradhanush” for protection and upliftment
of LGBTQIA+ community. Indradhanush, decided to file a petition before the Supreme Court
of Indiana under Article 32, demanding legal recognition for same-sex marriage.
4. A day after the Supreme Court decided to take up the matter, the Union Minister of Education
of Indiana chimed on Z.com and criticized Indradhanush. The official handle of Indradhanush
replied to the chime of the Union Minister. Subsequently, members of the Indradhanush noticed
that they were blocked from the Minister’s official account and personal account after one of
their replies to him went viral. The account of Indradhanush was blocked by all other Union
Cabinet minister’s personal and official accounts within days. Indradhanush approached the
Supreme Court seeking direction that the Ministers should unblock Indradhanush from their
official account.
5. All the petitions have been clubbed by the Hon’ble Supreme Court and will be heard together.

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ISSUES RAISED

Whether the present batch of petitions are maintainable or not?

II

Can legal recognition be granted to same-sex marriage?

III

Can the State of Johana be made accountable for the injustice caused to the members of
LGBTQIA+ Community?

IV

Can Ashish be declared liable for committing the offense of defamation?

Whether the blocking of Indradhanush’s account by the official account of Ministers on

“z.com” is unlawful?

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SUMMARY OF ARGUMENTS

WHETHER THE PRESENT BATCH OF PETITIONS ARE MAINTAINABLE OR NOT?

It is humbly submitted that there is grave violation of fundamental rights of LGBTQIA+ community as
they can’t marry partner if their choice. The petitioners also have locus standi in the current petitions as
the current petition is a PIL and petitioners work for the upliftment of LGBTQIA+ community. There
is no alternate and efficacious remedy available to the petitioner except for approaching the Apex Court,
only this court can grant such declaration which the petitioners have sought.

CAN LEGAL RECOGNITION BE GRANTED TO SAME-SEX MARRIAGE?

The recognition of same sex marriage is permissible under the Special Marriage Act, 1954 as the
language of the act is not gender or sex specific but Sex-neutral. The SMA doesn’t even provide for
explicit prohibition on same sex marriage despite having prohibition on certain marriages. Denial of
such recognition would result in grave violations of fundamental rights and human rights.

CAN THE STATE OF JOHANA BE MADE ACCOUNTABLE FOR THE INJUSTICE

CAUSED TO THE MEMBERS OF LGBTQIA+ COMMUNITY?

It is humbly submitted that; it is the duty of the state to protect the fundamental rights guaranteed to its
citizens under article 21 of the Constitution. The State is under a duty to affirmatively protect the rights
of a person under Article 21, whenever there is a threat to personal liberty even by a private actor.

ASHISH CANNOT BE HELD LIABLE FOR DEFAMATION

It is humbly submitted that, the impugned order of conviction suffers from infirmity and hence is liable
to set aside as no cognizance could have been taken by the Ld. Magistrate. There was no definite
identifiable class of people which was defamed. The petitioner was just exercising his right under Art.
19(1)(a) of the Constitution and there was no mens rea to defame the LGBTQIA+ community.

BLOCKING OF INDRADHANUSH’S ACCOUNT BY THE OFFICIAL ACCOUNT OF

MINISTERS ON “Z.COM” IS UNLAWFUL

It is humbly submitted that; official account of the minister is an instrumentality of state. There is grave
violation of the fundamental rights guaranteed under Article 19 of the Constitution of the petitioners as
right to freedom of speech also includes right to receive information from the state.

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ARGUMENTS ADVANCED

I. WHETHER THE PRESENT BATCH OF PETITIONS ARE MAINTAINABLE OR

NOT?
i. Writ Petitions filed by the petitioner “Indradhanush” against Union of Indiana.
The petitioner humbly submits that they have approached the Hon’ble Supreme Court
under Article 32 of the Constitution of Indiana. The present writ petition is maintainable
as a public interest litigation. It is respectfully submitted -

A. That there is grave violation of fundamental rights.

1. It is humbly submitted before this Hon’ble court that the denial of legal recognition
of marriage to the homosexual couples is in grave violation of the fundamental rights
envisaged under Part – III of the Constitution of the Indiana.

2. It is further submitted that, the subsequent action by the union ministers blocking the
account of the petitioners on Z.com is also violative of the fundamental rights of the
petitioner. Right to speech is an essential right envisaged under Art. 19(1)(a) of the
Constitution of Indiana and hence, any denial to such right is grave violation of the
fundamental rights of the petitioner.

3. In People's Union for Democratic Rights v. Union of India1, it was held that Public
Interest Litigation, which is a strategic arm of the legal aid movement and is intended
to bring justice within the reach of the poor masses, who constitute the low visibility
area of humanity, is an entirely different form of litigation than mainstream
litigation. Public interest litigation is brought before the court not to enforce the
rights of one individual against another, as in ordinary litigation, but to promote and
vindicate the public interest, which requires that violations of constitutional or legal
rights of large groups of people who are poor, ignorant, or socially or economically
disadvantaged be addressed.

4. In M. C. Mehta & Another v. Union of India & Others2, it was held that Article 32
does not simply provide the Supreme Court the authority to make directives, orders,

1
People’s Union for Democratic Rights and Others v. Union of India & Others, AIR 1982 SC 1473.
2
M. C. Mehta & Another v. Union of India & Others, AIR 1987 SC 965.
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or writs to enforce basic rights. Rather, it makes it a constitutional responsibility for

the Supreme Court to preserve the people's fundamental rights. The SC of India
claimed that “it has all incidental and ancillary authorities, including the authority
to create new remedies and construct new methods geared to enforce the basic
rights”3 in order to fulfil this constitutional mandate.

5. Fundamental rights mark the base of seeking relief under Art. 32. The Hon'ble court
has time and again recognized that the constitutional validity of a legislation can be
challenged when any of the fundamental rights enshrined under Part III of the
Constitution have been violated.4 Therefore, the violation of fundamental rights is
the sine qua non of the exercise of the right to approach SC.5

6. Unless a question of enforcement of fundamental rights arises, the jurisdiction of SC

under Article 32 cannot be invoked where the maintainability of a writ petition must
show the existence of some fundamental right of the petitioner that ought to be
adjudicated, held in Ramdas Athawale v. Union of India6.

7. Thus, for the maintainability of the present petition, it is expedient to note that the
denial of legal recognition of marriage to the homosexual couples is directly
encroaches upon the ‘guaranteed’ fundamental rights of the petitioners enshrined
under Art. 14, 15, 19 and 21.

B. That the petitioners have a locus standi in the matter.

8. The petitioner is a citizen of Indiana and is presently residing within the writ
jurisdiction of this Hon’ble Court. Similarly, the respondents are the
instrumentalities of the State Government covered under Article 12 of the
Constitution of Indiana and therefore amenable to the writ jurisdiction of this
Hon’ble Court.

9. The term locus standi refers to the right of being heard and the ability to institute a
proceeding or bring into an action before the court of law.7 Any member of public

3
M. C. Mehta & Another v. Union of India & Others, AIR 1987 SC 965.
4
Public Services Tribunal Bar Association v. State of U.P., (2003) 4 SCC 104
5
Federation of Bar Association in Karnataka v. UOI, (2000) 6 SCC 715
6
Ramdas Athawale v. Union of India, 2010 SCC OnLine SC 411
7
locus standi, Black's Law Dictionary (10th ed. 2015).
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or any public-spirited organization having a bona fide and sufficient public interest
will have locus standi to maintain an action for writ petition under Art. 32 as PIL.8
A matter under PIL is in the interest of public when there is gross violation of
fundamental rights of a group or a class of people.9

10. It is most humbly submitted that the Hon’ble Supreme Court of India has held that
a writ petition under Article 32 as a Public Interest Litigation by a public-spirited
person on behalf of a section of the society which complains of violation of
fundamental rights is maintainable.10

11. The Petitioner body is an independent student-driven resource body committed to

raising collective consciousness and sensitization on the lives and struggles of
diverse gender and sexual minorities. The objective of the collective is two-
pronged – firstly, to create a conducive environment for diverse gender and sexual
minorities on the campus to explore, socialize, learn and unlearn in a safe,
comforting, and holistic environment, and on the other, it collaborates with relevant
institute-level bodies on policy formulation and decisions that concern the rights,
needs and human development of persons belonging to the LGBTQIA+
community.

12. They have approached the Hon’ble Supreme court for bona-fide reasons. They do
not have any personal bias or benefits from this instant matter. Furthermore, a
petitioner will be deemed to have sufficient interest to maintain a petition under
Article 32 as a member of the public because it is the right of the public to be
governed by laws made in accordance with the Constitution and not laws made by
the legislature in violation of the constitutional provisions.11 It is submitted that the
fundamental rights of the citizens of Indiana guaranteed under Part III of the
Constitution have been infringed by the actions of the respondents. Detailed
arguments with respect to the same have been dealt with in the subsequent issues in
the written submissions.

8
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349.
9
Arvind P. Datar, Commentary on the Constitution of India 542 (2nd ed. 2007).
10
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
11
D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579, ¶ 2.
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13. Justice P.N Bhagwati in S. P. Gupta v. President of India and Ors.12, held that any
member of a public action or group acting in good faith may seek remedy from the
High Court and Supreme Court for a breach of a person’s legal or constitutional
right who is unable to approach the court for social, economic, or other reasons.

14. The stern rule of locus standi has been cut short by way of Representative standing,
and Citizen standing which has explained earlier. In D C Wadhwa vs State of
Bihar13. Supreme Court of India held that an applicant, a professor of political
science who had done the relevant research and enormously interested in ensuring
proper implementation of the constitutional provisions, challenged the practice
which becomes the usage of the state of Bihar in proclaiming a number of
ordinances without getting the approval of the legislature. The Court held that the
applicant as a member of the public has initiates ‘sufficient interest’ to maintain a
writ petition under Article 32.

15. Art. 32 constitutes the basic right of citizens to seek constitutional remedies which
works on the doctrine ‘Ubi Jus Ibi Remedium’, i.e. ‘where there is right, there is a
remedy’. Courts have time and again acknowledged the role of SC as ‘Sentinel on
the qui vive’. The right to seek remedy under Art. 32 is contained in Part III of the
Constitution of Indri which makes it a fundamental right in itself.14 Right to
approach SC under Art. 32 is not only conferred as the cornerstone of the
democratic edifice15 raised by the constitution but has also been recognized as one
of the most highly cherished rights16.

16. It not only confers powers to SC but also lays upon a duty to guard and uphold the
fundamental rights of the citizens of the country. The SC has affirmed that
fundamental rights are not only intended to protect an individual's basic rights but
they are based on high public policy which makes these rights the essence of the
Constitution and obliges the Apex court to render its duty as its custodian. The
court cannot refuse to entertain or issue an appropriate writ unless it is provided by

12
S. P. Gupta v. President of India and Ors., AIR 1982 SC 149.
13
D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.
14
Bodhisattawa v. Subhra Chakraborty, (1996) 1 SCC 490
15
Prem Chand Garg v. Excise Commissioner, UP, AIR 1963 SC 996
16
Fertilizer Corporation Kamgar Union (regd.) Sindri V. UOI, (1981) 1 SCC 568
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the Constitution itself.17 In the present petition, the SC has a constitutional

obligation to discharge its role of the ‘guarantor’ which is also invested with the
petitioners as their fundamental right to seek constitutional remedy under Art. 32.

17. It is humbly submitted that, the denial of legal recognition of marriage to the
homosexual couples is unjust and thus calls for intervention of this Hon’ble court
exercising their extra-ordinary jurisdiction.

18. Therefore, the petitioners in the instant case holds the locus to challenge the actions
of government, since it poses a violation of the right to privacy and free speech
which are an inherent part of part III of the Constitution.

C. That there is no alternate and efficacious remedy available to the petitioner.

19. It is humbly submitted that petitioning the Supreme Court under Article 32 to
uphold fundamental rights is a fundamental right in and of itself.18 The present
matter pertains to a pan-Indiana issue, effecting the rights of citizens irrespective
of their territorial state in the country. The apex Court is the most competent
authority for dealing with an issue of such gravity. Further, it is not per se
mandatory to exhaust the remedies available u/A 226 within the jurisdictions of
High Courts before approaching the Supreme Court.19 As a result, this Hon'ble
Court holds that the very existence of an effective alternative legal solution cannot
be good and proper basis for rejecting a petition under Article 32 on its own.

20. In Kavalappara Kottarathil Kochunni alias Moopil Nair v. The State of Madras20,
the SC elaborated on the scope of Art. 32 and rightfully elucidated, “the view that
this court is bound to entertain a petition under Art. 32 and to decide the same on
merits may encourage litigants to file many petitions under Art. 32, instead of
proceeding by way of a suit. But that consideration cannot by itself be a cogent
reason for denying the fundamental right of a person to approach this Court for

17
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457
18
Mohini v State of Karnataka, AIR 1992 SC 1858.
19
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
20
Kavalappara Kottarathil Kochunni alias Moopil Nair v. The State of Madras 1 JILI (1958-1959) 421
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the enforcement of his fundamental right which may, prima facie, appear to have
been infringed.”

II. CAN LEGAL RECOGNITION BE GRANTED TO SAME-SEX MARRIAGE?

21. The petitioners humbly submit that the legal recognition to the same sex marriage
shall be granted and the same is permissible under the Indiana laws. Denial of such
recognition is in grave violation to the fundamental rights and basic human rights.
It is humbly submitted, (i) that the recognition of same sex marriage is permissible
under the Special Marriage Act, 1954 (hereinafter referred as SMA in short). (ii)
Denial of such recognition is in grave violations of fundamental rights and human
rights.

i. The recognition of same sex marriage is permissible under the Special Marriage
Act, 1954.
A. Language of the Special Marriage Act 1952 is Sex-neutral.

22. Special Marriage Act 1954 revised and repealed the Act of 1872 so as to provide
the special form of marriage which could be taken advantage of by any persons in
India and by all Indian nationals in foreign countries irrespective of their religious
faith which either party to the marriage might profess.21 Special Marriage Act is a
kind of legislation which intends to liberate individuals from the traditional knots
and coercive collectivises in the matter of marriage and thereby recognizes the
independence of individuals in the society. It is also criticized to the ground that
the formalities attached and procedure prescribed for special marriages under
this act, provides enough time and scope for family; caste and community to harass
those who wish to take recourse to the act.22

23. It is well settled position of law, that the title of an Act is a part of the Act and is
admissible as an aid to its construction.23 It is humbly submitted that, the title and
preamble of the SMA is unambiguous and lays down the purpose for enactment of
the legislation by the legislature. It provides for a Special form of marriage in

21
Mookerjee, “Marriage, Separation, Divorce and Maintenances: 5th Ed. PP 91.
22
Kameshwar Choudhary, “Anatomy of the Special Marriage Act”, 26(52) Economic & Political Weekly 2981,
2983 (1991).
23
R v. Secretary of state for foreign and Commonwealth affairs (1994) 1 All ER 457
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certain cases, for the registration of such and certain other marriages and for
divorce.24

24. The preamble of the Act recites the ground and cause of making the statute, the
evils sought to be remedied.25 In case of SMA, the preamble clearly lays down the
purpose of the Act that it is enacted for registration of certain special form of
marriages and for their divorces. It is humbly submitted before this Hon’ble court,
that the preamble of the Act nowhere restricts the special form of marriage only in
respect of inter caste or inter religion couples. Such a restricted interpretation
would be against the legislative intent. It is very well settled that, if any doubt arises
from the terms employed by the legislature, it has always been held a safe means
of collecting the intention to call in aid the ground and cause of making the statute,
and to have a recourse to the Preamble, which is a key to open the mind of the
makers of the Act.26

25. Therefore, to open the minds of the law makers, the interpretation of the preamble
is very important, and the same cannot be given a restricted meaning on the words
used therein. It is humbly submitted that, the legislature while enacting the Act of
1954 were very careful and wanted to include homosexual couples for
solemnization of marriage under the SMA. This is very evident from the language
used in the provisions of the SMA.

26. It is respectfully submitted that, the language used while drafting the SMA is a
gender neutral thus, including the homosexual couples. Section 4 of the SMA,
provides for the Conditions relating to solemnization of special marriages. It is
humbly submitted that, the section 4 of the Act is gender neutral and thus, can be
applicable for solemnization of marriage between the homosexual couples.

27. The below-mentioned table lists the usage of gender-neutral term in the SMA.

24
SMA, 1954
25
SRTA v. D.P. Sharma AIR1989 SC 509
26
Sussex Peerage Case 1884 11 CI & F 85
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S. No. Section of the SMA, 1954 Usage of gender-

neutral terms.
1. Section 4 between any two
persons

2. Section 4(a), (b) neither party

3. Section 4(d) the parties are not within

4. Proviso to section 4 at least one of the parties

5. Section 5 the parties to the

marriage

6. Section 6(3) Where either of the

parties to an intended
marriage

7. Section 11 Declaration by parties

and witnesses

8. Section 20 any person whose

marriage
9. Section 21 Succession to property of
parties married under
Act.
10. Section 21A Under this Act of any
person who professes
11. Section 22 the aggrieved party may
apply by petition
12. Section 24 on a petition presented
by either party
13. Section 27(1)(a) person other than his or
her spouse
14. Section 27(2) either party to a
marriage
15. Section 30 either party to the
marriage may marry
again.

28. From a bare perusal of the above-mentioned tabular representation and the bare
reading of the bare Act, it is very evident, that the entire Act has been drafted in a
gender-neutral language and thus, any interpretation restricting it only to
heterosexual couples would defeat the legislative intent. The usage of words such
as Party, persons and spouse, makes it clear, that the solemnization need not
necessarily be between any male and female. No such compulsion is provided

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under the said Act. It is submitted that a spouse is an individual married to a person
of the opposite sex or same sex.27

29. Section 4 (c) of the SMA uses the words “male” and the “female”, which creates a
prima facie perception that, a solemnization of marriage under the said Act can
only be between a male and a female. However, it is humbly submitted before this
Hon’ble court, that, sub-section (c) of section 4 merely lays down the age criteria
for an individual based on their sexual orientation. The said sub-section cannot be
interpretated in a way in which it restricts the solemnization of marriage only
between the heterosexual couples. Opening to section 4 clearly states,
“―Notwithstanding anything contained in any other law for the time being in force
relating to the solemnization of marriages, a marriage between any two persons
may be solemnized under this Act”28.

30. It is very evident from the bare reading of the aforesaid provision that, the language
used is solemnization of marriage between any two persons. “Persons” being the
key gender-neutral term used by the legislature. It is a settled proposition of law,
that if a statutory provision is open to more than one interpretation, the court has to
choose that interpretation which represents the true intention of the legislature29 in
other words, the legal meaning and the true meaning of the statutory provision.30
If the legislature intend would have been to restrict the same sex marriage, then
explicit use of male and female would have been done in the section 4, but that is
not the case, and hence any other interpretation to the said section would defeat the
legislative intent. It is humbly submitted that, another rule of interpretation
accepted by this court time and again is that, if the words of a statute are clear, plain
or unambiguous, i.e., they are reasonably susceptible to only one meaning, the
courts are bound to give effect to that meaning irrespective of consequences.31
Similarly, irrespective of the consequences to any other laws related to

27
Obergefell v. Hodges, 576 U.S 644 (2015).
28
Section 4, SMA 1954
29
Venkataswami Naidu v. R. Narasram Naraindas AIR 1966 SC 361
30
Black Clawson International Ltd. V. Papierwerke Waldhof Aschaffenburg (1975) 1 All HER 810
31
CIT v. Mahaliram Ramjdas AIR 1940 PC 124
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maintenance and divorce, the provisions of section 4 shall legally recognise

homosexual marriages.

B. No express prohibition on same sex marriage.

31. It is humbly submitted before this Hon’ble court that under section 2(b) of the
SMA, certain described relationships are expressly prohibited as “degrees of
prohibited relationships”.32

32. It provides that, any man is prohibited to have a relationship with any person
mentioned in Part-I of the Schedule of the Act and any woman is prohibited to have
a relationship with any persons mentioned in Part-II of the schedule of the Act.

33. It is humbly submitted that, all such prohibitions for a man under Part-I of the
schedule is from certain specific relationships which he possesses with other
woman i.e., opposite sex. Similarly, all such prohibitions for a woman under Part-
II of the schedule is from certain specific relationships which she possesses with
other man i.e., opposite sex.

34. Thus, it is very clear, that in spite of having a separate prohibition clause in form
of a schedule to the Act, the legislature did not prohibit same sex marriage and
hence, it shows the legislature intent to not prohibit the same. It is well settled that
the courts cannot add or mend and, by construction make up deficiencies which are
left there in the Act.33 Hence, it is crystal that, in absence of any explicit prohibition
under the existing regime of the marriage laws in Indiana, the recognition of same
sex marriage can be and ought to be granted under the SMA, 1954.

ii. Denial of such recognition is in grave violations of fundamental rights and human
rights.

35. Without any prejudice to the aforesaid submission, it is humbly submitted that,
denial of recognition of same sex marriage is in grave violation of fundamental

32
Section 2(b), Special Marriage Act, 1954
33
Crawford v. Spooner (1846) 6 Moore PC 1
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rights envisaged under Article 14, 15, 19 & 21 of the Constitution of Indiana and
also violates the inherent human rights of an individual.

36. “What makes life meaningful is love. The right that makes us human is the right to
love. To criminalise the expression of that right is profoundly cruel and inhumane.
To acquiesce in such criminalisation, or worse, to recriminalize it, is to display the
very opposite of compassion. To show exaggerated deference to a majoritarian
Parliament when the matter is one of fundamental rights is to display judicial
pusillanimity, for there is no doubt, that in the constitutional scheme, it is the
judiciary that is the ultimate interpreter.”34

37. In National Legal Services Authority35, the Supreme Court held that Articles 14 to
16 and Articles 19 and 21 of the Constitution recognises gender identity and
discriminating someone based on their gender identity, would amount to violation
of their Fundamental Rights under the afore-stated Articles. The Constitution
Bench of the Supreme Court of India in Navtej Singh Johar36, interpreted that
Articles 21, 14, 15 and 19 of the Constitution include the Fundamental Rights to
Sexual Identity; Sexual Autonomy; Sexual Privacy, Choice of Partner.

38. Denial of legal recognition to same sex marriage is in grave violations to the
fundamental rights of an individual envisaged under Pt. III of the Constitution of
Indiana.

39. It is humbly submitted that; the Article 14 is our fundamental charter of equality.
classification under Article 14 of the Constitution, two criteria must be met : (i) the
classification must be founded on an intelligible differentia; and (ii) the differentia
must have a rational nexus to the objective sought to be achieved by the
legislation.37 There must, in other words, be a causal connection between the basis
of classification and the object of the statute. If the object of the classification is
illogical, unfair and unjust, the classification will be unreasonable.38

34
Justice Leila Seth, “A mother and a Judge speaks out on Section 377”, The Times of India, 26-1-2014.
35
National Legal Services Authority v. Union of India (2014) 5 SCC 438
36
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
37
State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1 : AIR 1952 SC 75 : 1952 Cri LJ 510
38
Deepak Sibal v. Punjab University, (1989) 2 SCC 145 : 1989 SCC (L&S) 284
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40. The doctrine of arbitrariness was evolved by way of series of judgments. Lately,
the Hon’ble apex court has held that;
“The expression “arbitrarily” means: in an unreasonable manner, as fixed or done
capriciously or at pleasure, without adequate determining principle, not founded
in the nature of things, non-rational, not done or acting according to reason or
judgment, depending on the will alone.”39

41. Creating classification based on sex under SMA for registration of marriage is
unreasonable in nature since, such classification is not based on any intelligible
differentia. The differentiation on basis of sexuality is blurred, and perhaps even
an outdated myth or invention when we understand the fluidity of sexual identities
today.40 The “naturalness” and omnipresence of heterosexuality is manufactured
by an elimination of historical specificities about the organisation, regulation and
deployment of sexuality across time and space”.41 It is thus this “closeting of
history” that produces the “hegemonic heterosexual” — the ideological
construction of a particular alignment of sex, gender and desire that posits itself as
natural, inevitable and eternal.42 Heterosexuality becomes the site where the male
sexed masculine man's desire for the female sexed feminine woman is privileged
over all other forms of sexual desire and becomes a pervasive norm that structures
all societal structures.43

42. It is difficult to locate any intelligible differentia between indeterminate terms such
as “heterosexual” and “homosexual”, then it is even more problematic to say that
a classification between individuals who supposedly engage in “heterosexual”
marriage and those who engage in “homosexual marriage”. In absence of any
reasonable classification based on intelligible differentia, the denial of recognition
of marriage on such classification is completely arbitrary and thus, violative of
Article 14 of the Constitution of Indiana.

43. It is humbly contended that denial of recognition of marriage to homosexual

couples discriminates on the basis of sex and violates Articles 15 and 16. When the

39
Shayara Bano v. Union of India, (2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277] 204, para 25
40
Brandon Ambrosino, “The Invention of Heterosexuality”, British Broadcasting Company, 26-3-2017.
41
Zaid Al Baset, “Section 377 and the Myth of Heterosexuality”, Jindal Global Law Review, Vol. 4 (2012).
42
Ibid
43
Ibid
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constitutionality of a law is challenged on the ground that it violates the guarantees

in Part III of the Constitution, what is determinative is its effect on the infringement
of fundamental rights.44 This affords the guaranteed freedoms their true potential
against a claim by the State that the infringement of the right was not the object of
the provision. It is not the object of the law which impairs the rights of the citizens.
Nor is the form of the action taken determinative of the protection that can be
claimed. It is the effect of the law upon the fundamental right which calls the courts
to step in and remedy the violation. The individual is aggrieved because the law
hurts. The hurt to the individual is measured by the violation of a protected right.
Hence, while assessing whether a law infringes a fundamental right, it is not the
intention of the lawmaker that is determinative, but whether the effect or operation
of the law infringes fundamental rights.

44. In National Legal Services Authority45 while dealing with the rights of transgender
persons under the Constitution, this Court opined: (SCC p. 488, para 66)

“66. Articles 15 and 16 sought to prohibit discrimination on the

basis of sex, recognising that sex discrimination is a historical
fact and needs to be addressed. The Constitution makers, it can
be gathered, gave emphasis to the fundamental right against sex
discrimination so as to prevent the direct or indirect attitude to
treat people differently, for the reason of not being in conformity
with stereotypical generalisations of binary genders. Both gender
and biological attributes constitute distinct components of sex.
The biological characteristics, of course, include genitals,
chromosomes and secondary sexual features, but gender
attributes include one's self-image, the deep psychological or
emotional sense of sexual identity and character. The
discrimination on the ground of “sex” under Articles 15 and 16,
therefore, includes discrimination on the ground of gender
identity.”

45. A provision challenged as being ultra vires the prohibition of discrimination on the
grounds only of sex under Article 15(1) is to be assessed not by the objects of the
State in enacting it, but by the effect that the provision has on affected individuals
and on their fundamental rights. Any ground of discrimination, direct or indirect,

44
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305 at para 42; Rustom Cavasjee Cooper v. Union of
India, (1970) 1 SCC 248 at paras 43, 49
45
National Legal Services Authority v. Union of India, (2014) 5 SCC 438
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which is founded on a particular understanding of the role of the sex, would not be
distinguishable from the discrimination which is prohibited by Article 15 on the
grounds only of sex.46

46. By not legally recognizing the marriage of two homosexual adults, SMA leads to
the perpetuation of a culture of silence and stigmatisation. Such denial notions of
morality which prohibit certain relationships as being against the “order of nature”.
Such denial is a discrimination grounded on stereotypes imposed on an entire class
of persons on grounds prohibited by Article 15(1). This constitutes discrimination
on the grounds only of sex and violates the guarantee of non-discrimination in
Article 15(1).

47. It is humbly submitted that, denial of legal recognition of same sex marriage
restricts an individual to choose their life partner by their own free will, restricting
their freedom of expression thus, violating Article 19(1)(a) of the Constitution of
Indiana. In Shafin Jahan47 this Court was concerned with the right of an adult
citizen to make her own marital choice. The learned court referred to Articles 19
and 21 of the Constitution of India and held that

“It is obligatory to state here that expression of choice in accord

with law is acceptance of individual identity. Curtailment of that
expression and the ultimate action emanating therefrom on the
conceptual structuralism of obeisance to the societal will destroy
the individualistic entity of a person. The social values and morals
have their space but they are not above the constitutionally
guaranteed freedom. The said freedom is both a constitutional and
a human right.”

48. Recently, in Shakti Vahini48, the Court has ruled that the right to choose a life
partner is a facet of individual liberty and the Court, for the protection of this right,
issued preventive, remedial and punitive measures to curb the menace of honour
killings. Such a right has the sanction of the constitutional law and once that is
recognised, the said right needs to be protected and it cannot succumb to the

46
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 : (2019) 1 SCC (Cri) 1 : 2018 SCC OnLine SC
1350 at page 222
47
Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 : AIR 2018 SC 1933
48
Shakti Vahini v. Union of India, (2018) 7 SCC 192 : (2018) 3 SCC (Civ) 580 : (2018) 3 SCC (Cri) 1
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conception of class honour or group thinking which is conceived of on some notion

that remotely does not have any legitimacy.

49. Thus, in light of above-mentioned decisions it is well settled that the right to choose
partner is matter of choice of an individual recognised under Article 19 and hence,
the same cannot be violated.

50. The 9-judge bench of this Hon’ble court in its landmark judgment held that, right
to privacy is a fundamental right under Article 21 of the Constitution of Indiana.49
In Navtej Singh Johar50, held Section 377, Penal Code, 1860 to be unconstitutional
insofar it criminalised gay sex between consenting adults.

51. While testing the constitutional validity of SMA, due regard must be given to the
elevated right to privacy. In the case at hand, the focus is limited to dealing with
denial of legal recognition of marriage to homosexual couples and other facets such
as right to choose as part of the freedom of expression and sexual orientation. That
apart, within the compartment of privacy, individual autonomy has a significant
space. Autonomy is individualistic. It is expressive of self-determination and such
self-determination includes sexual orientation and declaration of sexual identity.
Such an orientation or choice that reflects an individual's autonomy is innate to
him/her. It is an inalienable part of his/her identity. The said identity under the
constitutional scheme does not accept any interference as long as its expression is
not against decency or morality. And the morality that is conceived of under the
Constitution is constitutional morality. Under the autonomy principle, the
individual has sovereignty over his/her body. He/she can surrender his/her
autonomy wilfully to another individual and their intimacy in privacy is a matter
of their choice. Such concept of identity is not only sacred but is also in recognition
of the quintessential facet of humanity in a person's nature. The autonomy
establishes identity and the said identity, in the ultimate eventuate, becomes a part
of dignity in an individual. This dignity is special to the man/woman who has a
right to enjoy his/her life as per the constitutional norms and should not be allowed
to wither and perish like a mushroom. It is a directional shift from conceptual

49
Retd. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
50
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
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macrocosm to cognizable microcosm. When such culture grows, there is an

affirmative move towards a more inclusive and egalitarian society. Non-acceptance
of the same would tantamount to denial of human rights to people and one cannot
be oblivious of the saying of Nelson Mandela — “i[”.

52. As far as the aspect of sexual orientation is concerned, the Court opined that it is
an essential attribute of privacy and discrimination against an individual on the
basis of sexual orientation is deeply offensive to the dignity and self-worth of the
individual. The Court was of the view that equality demands that the sexual
orientation of each individual in the society must be protected on an even platform,
for the right to privacy and the protection of sexual orientation lie at the core of the
fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

53. Therefore, in light of judgments of NALSA, Puttoswamy & Navtej Singh Johar, it
is very well established that, right to choose life partner is a fundamental right and
the facet of privacy is included in right to choose partner. Privacy is also a
fundamental right and after Navtej Singh Johar, it is very evident that
discrimination against homosexuality on basis of sex differentiation, is grossly in
violation to Fundamental Rights of the constitution of Indiana.

54. The Supreme Court of the United States in Obergefell v. Hodges51, highlighting the
plight of homosexuals, observed that until the mid-20th century, struck down all
state bans on same-sex marriage, legalized it in all fifty states, and required states
to honour out-of-state same-sex marriage licenses. Legalisation of same sex
marriage paced up back in 2001, when Netherlands became first country to legalise
the same sex marriage. Lately, there are 35 countries around the world, which has
legalised the same sex marriage.

55. The South African Constitutional Court in National Coalition for Gay and Lesbian
Equality v. Minister of Justice52 has arrived at a theory of privacy in sexuality that
includes both decisional and relational elements. It lays down that privacy

51
Obergefell v. Hodges, 2015 SCC OnLine US SC 6 : 192 L Ed 2d 609
52
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998 SCC OnLine ZACC 15 : (1999)
1 SA 6 : (1998) 12 BCLR 1517
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recognises that we all have a right to a sphere of private intimacy and autonomy
which allows us to establish and nurture human relationships without interference
from the outside community. The way in which we give expression to our sexuality
is at the core of this area of private intimacy. If, in expressing our sexuality, we act
consensually and without harming one another, invasion of that precinct will be a
breach of our privacy. The Court admitted that the society had a poor record of
seeking to regulate the sexual expression of South Africans.

56. It is pertinent to mention here that, denial of legal recognition of same sex marriage
is not only violative to fundamental rights, but also to the basic human rights.
International human rights treaties and jurisprudence impose obligations upon
States to protect all individuals from violations of their human rights, including on
the basis of their sexual orientation.53 The human rights treaties that India has
ratified require States parties to guarantee the rights to equality before the law,
equal protection of the law and freedom from discrimination.

54
57. Article 12 of the Universal Declaration of Human Rights, (1948) makes a
reference to privacy. Similarly, Article 17 of the International Covenant on Civil
and Political Rights55, to which India is a party, talks about privacy. Article 2 of
the ICESCR requires States to ensure that no discrimination is made on ground of
race, case, sex, religion or other opinion, nationality, or birth status. The ECtHR
concluded that Dudgeon had suffered and continued to suffer an unjustified
interference with his right to respect for his private life. Hence, the Court struck
down the laws under challenge as violative of Article 8 of the European Convention
on Human Rights56, insofar as they criminalised “private homosexual relations
between adult males capable of valid consent”.

58. In 2015, in Oliari v. Italy57, the applicants before the ECtHR argued that the
absence of legislation in Italy permitting same sex marriage or any other type of

53
Dominic McGoldrick, “The Development and Status of Sexual Orientation Discrimination under International
Human Rights Law”, Human Rights Law Review, Vol. 16 (2016).
54
Universal Declaration of Human Rights, (1948)
55
International Covenant on Civil and Political Rights, 1966
56
European Convention on Human Rights, 1953
57
Oliari v. Italy, 2015 ECHR 716
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civil union constituted discrimination on the basis of sexual orientation, in violation

of Articles 8, 12, and 14 of the European Convention on Human Rights. In line
with its previous case law, the Court affirmed that same sex couples “are in need
of legal recognition and protection of their relationship”58 . The ECtHR concluded
that gay couples are equally capable of entering into stable and committed
relationships in the same way as heterosexual couples.

59. From an analysis of comparative jurisprudence from across the world, the
following principles emerge: Sexual orientation is an intrinsic element of liberty,
dignity, privacy, individual autonomy and equality; The right to love and to a
partner, to find fulfilment in a same sex relationship is essential to a society which
believes in freedom under a constitutional order based on rights; Sexual orientation
implicates negative and positive obligations on the State. It not only requires the
State not to discriminate, but also calls for the State to recognise rights which bring
true fulfilment to same sex relationships.59

60. Thus, it is humbly submitted, that it is the constitutional duty of the state to give
the legal recognition of marriage to the homosexual couples which is there inherent
fundamental and human right and any denial of such recognition grossly violates
the fundamental and human rights.

III. CAN THE STATE OF JOHANA BE MADE ACCOUNTABLE FOR THE INJUSTICE
CAUSED TO THE MEMBERS OF LGBTQIA+ COMMUNITY?

61. It is humbly submitted before the Hon’ble Court that the State of Johanna is liable
for the injustice caused to the LGBTQIA+ community in the protest dated February
10, 2023. In the case of Ram Jethmalani vs Union of India60, it was held that the
burden of protection of fundamental rights is primarily the duty of the state.

62. It is humbly submitted that, the LGBTQIA+ community announced on social

media that they will organize a peaceful protest in the state of Johanna on Feb. 10,

58
Ibid para 165.
59
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 : (2019) 1 SCC (Cri) 1 : 2018 SCC OnLine SC 1350 at
page 271
60
Ram Jethmalani vs Union of India, (2011) 8 SCC 1.
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2023. Another organization namely “saving the tradition” announced that it would
not allow the members of the LGBTQ community to conduct protest. In the protest,
the latter community attacked the former peaceful protestors and injured them. The
state of Johanna blatantly failed to provide necessary protection to the peaceful
protestors.

63. It is humbly submitted that, right to peaceful protests is a recognized right under
the constitution of Indiana. Any denial to such right would gravely violate the
fundamental rights of the citizen. Neither the state nor any private entity can restrict
such right of any citizen of the country.

64. The Hon’ble apex court has recognized the right to peaceful protest as a
fundamental right guaranteed under Article 19 of the constitution of Indiana and
has held as under;

“12.We can appreciate that holding peaceful demonstration in

order to air their grievances and to see that their voice is heard in
the relevant quarters is the right of the people. Such a right can be
traced to the fundamental freedom that is guaranteed under
Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article
19(1)(a) confers freedom of speech to the citizens of this country
and, thus, this provision ensures that the petitioners could raise
slogan, albeit in a peaceful and orderly manner, without using
offensive language. Article 19(1)(b) confers the right to assemble
and, thus, guarantees that all citizens have the right to assemble
peacefully and without arms. Right to move freely given under
Article 19(1)(d), again, ensures that the petitioners could take out
peaceful march. The “right to assemble” is beautifully captured in
an eloquent statement that “an unarmed, peaceful protest
procession in the land of “salt satyagraha”, fast-unto-death and
“do or die” is no jural anathema”. It hardly needs elaboration that
a distinguishing feature of any democracy is the space offered for
legitimate dissent. One cherished and valuable aspect of political
life in India is a tradition to express grievances through direct
action or peaceful protest. Organised, non-violent protest marches
were a key weapon in the struggle for Independence, and the right
to peaceful protest is now recognised as a fundamental right in the
Constitution.”61

65. In another latest judgment of this Hon’ble court, it was observed as under;

61
Anita Thakur v. State of J&K, (2016) 15 SCC 525
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“6.We clarify that this Court will not interfere with the protest in
question. Indeed the right to protest is part of a fundamental right
and can as a matter of fact, be exercised subject to public order.
There can certainly be no impediment in the exercise of such rights
as long as it is non-violent and does not result in damage to the life
and properties of other citizens and is in accordance with law62.”

66. Therefore, it is very well settled that, right to peaceful protest is a recognized
fundamental right guaranteed Article 19 of the constitution of Indiana. In the
present facts of the case, it is very evident that, on announcement of the peaceful
protest by the LGBTQIA+ community, the organisation namely “saving the
tradition” made threats to the community and hence, the threats were in public
domain and were in the sufficient knowledge of the state. In spite of such sufficient
knowledge by the State, they failed to protect the rights and interests of the
community and hence, they are accountable for it.

67. This Hon’ble apex court by way of its constitution bench in its latest judgment of
Kaushal Kishore v/s State of U.P63 has expressly held that, the state is under the
duty to affirmatively protect the rights of a person under Article 19 & 21, whenever
there is a threat to personal liberty, even by a non-state actor.

68. Similar facts came before this Hon’ble court, when a community called Chakmas
migrated from East Pakistan to the Eastern states of India and were threatened by
the All–Arunachal Pradesh Students’ Union (AAPSU) to forcibly drive them out
of the neighbour’s state. This Hon’ble court held that, it is the duty of the state to
protect the interests and rights of the community when threatened by another
community. No such group of persons can make threats to other persons, and if
done, then they shall be dealt in accordance with the law. 64

69. In another case, wherein a woman was ordered for gang rape by the local people
of a community for honour killing, the court held, that it was the duty of the state
police to protect her. The court held that;

62
Rakesh Vaishnav v. Union of India, (2021) 15 SCC 531
63
Kaushal Kishore V/s State of UP (2023) 4 SCC 1
64
National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742
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“16. Ultimately, the question which ought to consider and assess

by this Court is whether the State police machinery could have
possibly prevented the said occurrence. The response is certainly
a “yes”. 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. Such
offences are resultant of the State's incapacity or inability to
protect the fundamental rights of its citizens.”65

70. Therefore, it is very evident, that the state failed in their primary duty to safeguard
the interest and rights of the protestor thus violating their fundamental rights for
which they shall be held liable.

71. After the incident, the aggrieved protestors, endeavoured to police station for
registration of FIR, however were denied on the ground that, they were precluded
from receiving a complaint against an indistinct and unidentifiable collective,
necessitating the provision of specific individual identifiers as a prerequisite for
registering a formal complaint.

72. It is humbly submitted that; the police authority has no right to deny the registration
of FIR on the aforesaid grounds. The law on registration of FIR is very well settled
by this Hon’ble court in the case of Lalita Kumar v/s state of UP.66 The court has
held that the only pre-requisite for registration of FIR is a commission of a
cognizable offence as per section 154 of the criminal procedure code. It is held that,
the registration of FIR is mandatory if the information discloses the commission of
a cognizable offence. It was further held, that denial of registration of FIR shall be
dealt seriously and action as per law shall be taken against the concerned police
officers.

73. There is no requisite that the details of specific individual identifiers are necessary
for registration of FIR. It is further pertinent to mention here that, police being an
instrumentality of the state, blatantly failed to register the First Information Report
and thus, state is liable for such casual and illegal actions of the police.

65
Gang-Rape Ordered by Village Kangaroo Court in W.B., In re, (2014) 4 SCC 786
66
Lalita Kumar V/s State of U.P (2014) 2 SCC 1
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74. It is further pertinent to mention here that, the learned National Human Rights
Commission took cognizance of the matter on a complaint case and further, formed
a Special Investigation Team under section 14 of the Protection of Human Rights
Act, 1993. The said SIT tabled its report before the learned commission and based
on the said report, the learned commission has concluded a finding stating it was
found that the police were negligent in not providing ample security. Thus, the state
is liable for such negligence. It requires States to take positive measures to prevent
the violations of human rights by both State and private actors, as well as to
investigate them, prosecute those responsible and provide redress to victims.67

75. Therefore, on basis of abovementioned submissions, the state of Johana be made

accountable for the injustice caused to the members of LGBTQIA+ Community.

IV. ASHISH CANNOT BE HELD LIABLE FOR DEFAMATION

76. It is humbly submitted that the judgment and order of conviction (hereinafter
referred as impugned order) passed by the trial court is illegal, void and suffers
from patent illegality and hence, cannot be sustained in law. The essentials of
defamation as under S.499 IPC are not fulfilled. It is humbly submitted that, [i] The
present SLP is maintainable [ii] No cognizance could have been taken by the
magistrate [iii] There was no identifiable class that was defamed [iv] No mens rea
to defame anyone. [v] The statement made was not imputable to the reputation of
any class of people.

i. The present SLP is maintainable.

77. The appellant has filed the present appeal against the order of conviction passed by
the trial court for the offence of defamation. It is humbly submitted that, the present
special leave to appeal in maintainable and shall be entertained by this Hon’ble
court.

67
Human Rights Committee, General Comment No.31: The Nature of the General Legal Obligation Imposed on
States Parties to the Covenant (26 May 2004) at para 8
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78. It is humbly submitted that the powers under Article 136 are plenary, limitless68,
adjunctive, and unassailable69. It is humbly contended that the impugned order has
blatantly violated the rights of the appellant and thus raises substantial questions of
law, which needs interreference of this Hon’ble court. The impugned order raises
an important issue on the freedom of speech of citizens of the country and their
right to have dissenting opinion against a group of society. Merely having an
unwanted opinion and posting same on social media has been termed as
“defamation” vide the impugned order which cannot be legally sustained in light
of Article 19 of the Constitution of India. If the impugned order is not interfered
by this Hon’ble court, then it will gravely violate the fundamental rights of the
appellant.

79. It is a settled position of law that the available of alternative remedy is not a bar to
file an SLP under Article 136 of the Constitution.70 The ordinary rule of necessity
that litigants should approach and avail of appellate remedies exhausting them
before approaching this Court is a rule of convenience and not an immutable
practice.71 This Hon’ble court has time and again has exercised its discretion and
has entertained SLPs without exhaustion of appellate remedies. It is already settled
that the special leave can be granted against the decisions of the lower courts such
as of magistrates.72

80. Article 136 has been couched in the widest possible terms. It gives discretion to the
Supreme Court to grant “special leave to appeal” from any judgment, decree,
determination, sentence or order “in any cause or matter” “passed or made” by “any
court or tribunal” in the territory of India. The non obstante clause emphasises that
the power overrides the limitations on the court’s power to entertain appeals.”73

68
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546
69
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
70
State of UP v Harish Chandra & Ors 1996 (9) SC 309
71
IIT Kharagpur and ors. V. Soutrik Sarangi and ors. 2021 SCC OnLine SC 826
72
Rajender Kumar Jain v. state AIR (1980) SC 1510
73
Bharat Bank Ltd. v. The Employees of Bharat Bank Ltd., Delhi, (1950) SCR
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81. The appellant in his subsequent submissions, would submit that there is an apparent
error in the impugned order on the face of it, and thus the present SLP is
maintainable

ii. No cognizance could have been taken by the magistrate

82. It is humbly submitted that, as per section 199 of the Criminal Procedure Code,
1973, cognizance of a defamation case, can only be taken by the magistrate upon
the complaint of an aggrieved person.

83. In the present facts and circumstances of the case, the complaint was filed by the
complainant named Rachel against the social media post uploaded by the present
appellant. It is humbly submitted that the aggrieved person only has locus to file
such complaint before the magistrate.74 Such a person ought to be defamed by the
said post and then only he/she will have sufficient locus to maintain a complaint.75

84. In the present case, Rachel is not a homosexual person, and thus the statement by
the complainant had not in any way defamed Rachel. She had no locus to file the
complaint and hence, the magistrate could not have taken cognizance of the matter.

85. It is the settled position of law, that if the initiation of proceedings is illegal, then
the entire proceedings and the orders are vitiated and declared null and void.
Similarly, the Hon’ble apex court has held that;

“14.That section lays down that no Magistrate shall take

cognizance of an offence falling inter alia under Chapter XXI of
the Penal Code (that is, Sections 499 to 502) except upon a
complaint made by some persons aggrieved of such offence.
Section 198, thus, lays down an exception to the general rule that
a complaint can be filed by anybody whether he is an aggrieved
person or not, and modifies that rule by permitting only an
aggrieved person to move a Magistrate in cases of defamation. The
section is mandatory, so that if a Magistrate were to take
cognizance of the offence of defamation on a complaint filed by one
who is not an aggrieved person, the trial and conviction of an

74
Balasaheb Keshav Thackeray v. State of Maharashtra, 2002 SCC OnLine Bom 1020
75
Ganesh Nand v. Swami Divyanand, 1980 Cri.L.J. 1036
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accused in such a case by the Magistrate would be void and

illegal”76

86. Thus, in light of the law laid down by the apex court, the magistrate could not have
taken the cognizance and hence, the impugned order suffers from infirmity and
hence is liable to be set aside.

iii. There was no identifiable class that was defamed.

87. Without prejudice to the aforesaid submissions, it is humbly submitted that a

collection of individuals must be an identifiable to be able to say with definiteness
that a group of persons as differentiated from the rest of the community, was
defamed.77 It has been held that;

“Such collection of individuals must be an identifiable body so that

it is possible to say that with definiteness that a group of particular
persons, as distinguished from the rest of community, was defamed.
Therefore, in a case where explanation (2) is resorted to, the
identity of the company or the association or collection of persons
must be established so as to be relatable to the defamatory words
or imputations. Where a writing inveighs against mankind in
general, or against a particular order of men, eg, men of gown, it
is no libel. It must descend to particulars and individuals to make
it a libel.”78

88. The language of Explanation 2 is general and any collection of persons would be
covered by it. Of course, that collection of persons must be identifiable in the sense
that one could, with certainty, say that this group of particular people has been
defamed, as distinguished from the rest of the community.79

89. It is a well-settled principle that the words or imputations complained of

defamatory need to relate to some particular person(s) whose identity can be
established. If such statements do not show any imputation aimed at any particular
individual or individuals, but equally apply to others although belonging to the
same class, it does not amount to defamation. Defamation of an unidentifiable class

76
G. Narasimhan v. T.V. Chokkappa, (1972) 2 SCC 680
77
Ibid
78
Ibid Para 15.
79
Sahib Singh Mehra vs State Of Uttar Pradesh, 1965 AIR 1451. Para 9
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does not come within the ambit of the second explanation of section 499 of the
IPC.80

90. It is submitted that given the spreading limits of the LGBTQIA+ community in the
country, it is not possible to identify “with definiteness” any group of persons, as
distinguished from the rest of the community, who can be said to have been
defamed through this statement. Moreover, the presence of “+” in the community
denotes everything on the spectrum of gender and sexuality that words fail to
describe. Therefore, defamation fails to be proven under Explanation 2 for
collection of persons to be established so as to be relatable to imputations is absent.

91. The Hon’ble apex court has further held that;

“In case the identity of the collection of persons is not established

so as to be relatable to the defamatory words or imputations, the
complaint is not maintainable. It has been further opined that in
case a class is mentioned, if such a class is indefinite, the complaint
cannot be entertained and furthermore, if it is not possible to
ascertain the composition of such a class, the criminal prosecution
cannot proceed.”81

92. It is also submitted that because there is not identified class, criminal prosecution
for the alleged defamation cannot be proceeded and hence, the impugned order
suffers from infirmity and is liable to be set aside.

iv. There was no mens rea to defame.

93. Without prejudice to the aforesaid submissions, it is humbly submitted that the
offense of defamation under S.499 IPC, 1860 requires intention to be proven for
holding anyone liable.82 It has been held that;
“The test of defamatory nature of a statement is its tendency to
incite an adverse opinion or feeling of other persons towards the
plaintiff. A statement is to be judged by the standard of ordinary,
right-thinking members of society at the relevant time. The words
must have resulted in the plaintiff to be shunned or evaded or
regarded with the feeling of hatred, contempt, ridicule, fear, dislike

80
Narrottamdas v Maganbhai, (1984) Cr LJ 1790 (Guj).
81
Subramanian Swamy v. Union of India, (2016) 7 SCC 221. Para 171.
82
S.499 IPC.
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or disrespect or to convey an imputation to him or disparaging him

or his office, profession, calling, trade or business.”83

94. It is contended that the statements made by Ashish do not amount to defamation
for there was no intention or knowledge present to defame. It is important to
observe that society of Indiana, where people are yet to accept the idea of same-
sex marriage with open arms is to be taken note of before calling such statements
as defamatory.

95. Moreover, the standard followed for the offence is lowering of reputation in the
eyes of the “right thinking members of the society”. The doctrine is widely adopted
in other countries like Israel also. Furthermore, the statement is defamatory even if
the “right thinking” person views the “norms of that segment” of the community
as peculiar.84 It is submitted that in the preceding years, the apex court of Indiana
has attributes of dignity and privacy by giving legal recognition to consensual
homosexual sex between two adults.85 For more than half of the decade, the
community has been winning recognition and acceptance with various rights also
being extended. Hence, the lens towards the community is constantly evolving and
the society sees the community based on the evolved norms of the society. Hence,
the educated and the right-thinking members of the society are not likely to be
affected by such statements at all because of adjudicatory determinations of the
Supreme Court.

96. It is further submitted that, on basis of the social media posts by the LGBTQ
community, the present appellant expressed his opinion on the issues pertaining to
homosexuality. There was no intention or knowledge that such statement would
defame any class of people. If mens rea or criminal intention is lacking or is missing
in the act of the accused, he cannot be held guilty for an offence of defamation
within the meaning of Section 499 of IPC.

97. The Hon'ble Supreme Court of India in the case of S. Khushboo v. Kaniamal,86
after considering the key ingredients of the offence contemplated by Section 499

83
Prof. Imtiaz Ahmad v. Durdana Zamir, (2009) 109 DRJ 357.
84
Shaha v. Dardiryan, P.D. 39 (4) 734 (1985). At 750.
85
Moot Problem Para 7.
86
S. Khushboo v. Kaniamal, (2010) 5 SCC 600 : AIR 2010 SC 3196
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of IPC, has held that the definition makes it amply clear that the accused must either
intend to harm the reputation of a particular person or reasonably know that his/her
could cause such harm.

98. Therefore, in absence of sufficient mens rea, the impugned order of conviction
suffers from infirmity and hence is liable to be set aside.

V. BLOCKING OF INDRADHANUSH’S ACCOUNT BY THE OFFICIAL ACCOUNT

OF MINISTERS ON “Z.COM” IS UNLAWFUL

99. It is humbly submitted that; the Union ministers of the ruling government had
blocked the official account of the petitioners on “Z.com” is in grave violation of
Article 19 of the Constitution of Indiana since the official account of the respondent
ministers is a part of “state” as envisaged under Article 12 of the constitution of
Indiana.

v. Official account of the minister is an instrumentality of state

100.It is submitted that a fundamental right under Article 19 or 21 can be enforced even
against persons other than the State or its instrumentalities.87 It is humbly submitted
that the apex Court held that if a body is functionally, structurally, and financially
acting as an instrumentality or agency of the government, it can be classified as a
‘State’ under Article 12.88

101.It is submitted that the official account of the ministers is clearly held in public
capacity given that the posts and interaction on it is for the public at large. The
account which is held by the minister has deep and pervasive state control and the
functions are of public importance which are closely related to governmental
functions.

vi. Article 19 of the Constitution of Indiana has been violated.

102.Article 19 (1) (a) of the Constitution of Indiana guarantees fundamental right to
freedom of speech and expression.89 This Hon’ble court held that the right to know

87
Kaushal Kishor v. State of U.P., (2023) 4 SCC 1.
88
Ajay Hasia vs Khalid Mujib, 1981 AIR 487.
89
Article 19 of Constitution of Indiana.
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is an integral part of freedom of speech and expression and disclosure of

information related to the performance and functions of the government must be
the rule.90 Therefore, by virtue of this article the right to information becomes a
constitutional right as the right to free speech also guarantees the right to receive
and collect information.91 It is also humbly submitted that it is only when
discussion and advocacy reach to the level of incitement that Article 19(2) of the
Constitution can be invoked. This Hon’ble court has held as under;

“There are three concepts which are fundamental in understanding

the reach of this most basic of human rights. The first is discussion,
the second is advocacy, and the third is incitement. Mere
discussion or even advocacy of a particular cause howsoever
unpopular is at the heart of Article 19(1)(a). It is only when such
discussion or advocacy reaches the level of incitement that Article
19(2) kicks in.”92

103.It is humbly submitted before the Hon’ble court that by blocking the account of
Indradhanush by the ministers on Z.com, the right to freedom of speech and
expression of the organization has been violated. Right to information form’s part
and parcel of article 19 and blocking of accounts by ministers inhibits them from
seeing the past and future posts. Hence, it inhibits them from being informed about
the policies, decisions and expression of opinions by representatives to be aware of
which they have a right. Being denied this right renders their right under article 19
nugatory.

104.It is further contended that Right to impart and receive information is a species of
Article 19(1)(a) and this Hon’ble court has held as under;

“43. The freedom of speech and expression includes the right to

acquire information and to disseminate it. Freedom of speech and
expression is necessary, for self-expression which is an important
means of free conscience and self-fulfilment. It enables people to
contribute to debates of social and moral issues. It is the best way
to find a truest model of anything, since it is only through it, that

90
S.P.Gupta v. Union of India, AIR 1982 SC 149.
91
Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788 .
92
Shreya Singhal v. Union of India, (2015) 5 SCC 1. Para 13
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the widest possible range of ideas can circulate. It is the only

vehicle of political discourse so essential to democracy.”93

105. Hence, it also governs "to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control of public
authorities, in order to promote transparency and accountability in the working of
every public authority"94

106.The Hon’ble Supreme Court gave a broad dimension to Article 19(1) (a) as it said
that this right not only include circulation and communication but also receiving
the information as they are two sides of the same coin, it ensures the right of the
citizens to know the information related to matters concerning the public. 95 One-
sided information, disinformation, misinformation and non-information, all
equally create an uninformed citizenry which makes democracy a farce96 which is
a part of Basic Structure Doctrine.97

107.It is further humbly submitted before the court that democratic countries like
Indiana98 breathe ideas of public participation and transparency which in the
current era largely operate on principles of digital communication over social
media platforms like Z.com by keeping the citizenry updated in most accessible
and quick ways. Hence, blocking of accounts by various ministers has created an
uninformed citizenry which makes democracy a farce because with no access to
information, the fundamental right of expression and show dissent also get
hampered. Hence the right to free speech through the internet is recognized under
Article 19 (1)(a) of the Constitution of Indiana.99 The same has been reiterated by
this Hon’ble court as under;
“We declare that the freedom of speech and expression and the
freedom to practice any profession or carry on any trade, business
or occupation over the medium of internet enjoys constitutional
protection under Article 19(1)(a) and Article 19(1)(g). The
restriction upon such fundamental rights should be in consonance

93
Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161
94
RTI Act, 2005
95
State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865
96
Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294.
97
SR Bommai vs Union of India, 1994 AIR 1918.
98
Moot Problem para 1
99
Anuradha Bhasin v. Union of India, (2020) 3 SCC 637
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with the mandate under Article 19 (2) and (6) of the Constitution,
inclusive of the test of proportionality.”100

108.Therefore, in light of the above judicial pronouncements and constitutional provisions,

the action of the ministers by blocking the official account of the petitioners is in grave
violation of the fundamental rights.

100
Ibid
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PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before the Hon’ble Court, that it may be graciously pleased
to adjudge and declare that

1. Same sex marriage for homosexual couples is recognized and be registered under the
provisions of Special Marriage Act.
2. The State is under a duty to affirmatively protect the rights of a person under Article
21, whenever there is a threat to personal liberty even by a private actor.
3. The impugned order of conviction passed by the trial court be set aside and the
appellant be acquitted with the charges.
4. Direct the ministries to unblock the official account of the petitioners as blocking them
is in violation of the fundamental rights.

And pass any such other order as it deems fit in the interest of equity, justice and good
conscience.

All of which is most humbly and respectfully submitted

Date: __/__/2023 Sd/-

Place: (Counsel for the Petitioner)

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