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A memorandum submitted in the 1st National Virtual Moot Court Competition, 2020, regarding a public interest litigation filed against the Union of Adisthan and a marriage officer for denying same-sex marriages. The memorandum raises issues of fundamental rights violations under Articles 14, 15, and 19 of the Constitution of Adisthan, as well as the right to live with dignity, marriage, and privacy. The document also discusses relevant case law and arguments for the maintainability of the litigation.
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1 st^ NATIONAL VIRTUAL MOOT COURT COMPETITION, 2020 i 1 st^ NATIONAL VIRTUAL MOOT COURT COMPETITION, 2020. BEFORE THE HON’BLE SUPREME COURT OF ADISTHAN PUBLIC INTEREST LITIGATION NO. _____ OF 2020 MIKE AND ROSS …………………………………………………PETITIONER Versus UNION OF ADISTHAN.…………………………………………………..RESPONDENT (UNDER ARTICLE 32 OF THE CONSTITUTION OF ADISTHAN) MEMORIAL ON BEHALF OF THE PETITIONER TEAM CODE: TCLA
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INDEX OF AUTHORITIES …………………………………………………………………i STATEMENT OF JURISDICTION…………………………………………………………vii STATEMENT OF FACTS ………………………………………………………………….viii ISSUES RAISED………………………………………………..…..……………….…………ix SUMMARY OF ARGUMENTS ……………………………………….……………………x ARGUMENTS ADVANCED………..……………………………………………….………. 1
1. Whether the public interest litigation filed against Union of Adisthan and marriage officer of Vasanthapuram is maintainable? 1.1.Whether the public interest litigation can be filed against the Union of Adisthan and the marriage officer ……………………………………………………………………… 1 1.2.Whether there has been violation of fundamental rights of the petitioner? .................. 2 1.3.Alternate remedy not a bar **............................................................................................ 3
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State of Bombay v. United motors Ltd. AIR 1959 SC 252 3 11. K. K. Kouchini v. State of Madras AIR 1959 SC 725 3 12. Harbhansal Sahnia v. Indian Oil Corporation Ltd.
Anu Garg and others v. Union of India CWP NO. 4692 of 1999 3 14. Navtej Singh Johar v. Union of India 2018 (4) KLT 1 (SC) 3 15. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1925 8 16. Shakti Vahini v. Union of India (2018) 7 SCC 192 9 17. K. S. Puttuswamy v. Union of India (2017) 10 SCC 1 9 18. Asha Ranjan v. State of Bihar and Others CRL MP No. 17101 of 2016 12 19. Kishore Samrite v. State of U.P. and others
Umesh Kumar v. State of A.P. and others
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AIR All India Reporter Art. Article
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The petitioners have approached the Hon’ble Supreme Court under Article 32 of the constitution which reads as under:
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The applicant respectfully asks this Hon’ble Court to determine the following questions presented: ISSUE 1: Whether the public interest litigation filed against the Union of Adisthan and marriage officer of Vasanthapuram is maintainable? ISSUE 2: Whether the denial of solemnizing the same sex marriages in Union of Adisthan is infringing the fundamental rights of the people who belong to the LGBTQI community. ISSUE 3: Whether the provisions under the SMA,1954 are constitutionally valid to the LGBTQI coummunity?
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It is humbly submitted before the hon’ble court that petitioners rights under art. 14,15,19 and 21 of the constitution of Adisthan is infringed. The denial of solemnising the homosexual marriage of petitioners infringed their right to be treated with equality and protection from sexual discrimination. The petitioners right to union or association is also not recognised as their marriage was not solemnised or not recognised by the marriage officer of Vasanthapuram. As the petitioners right to privacy and right to live with dignity is also infringed as the marriage was an autonomous decision which shows the indiviuality of human. III.WHETHER THE PROVISIONS UNDER THE SMA,1954 ARE CONSTITUTIONALLY VALID TO THE LGBTQI COMMUNITY?
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The citizens are deprived off a plethora of fundamental rights violating various predominant rights guaranteed under: [I.2.1] Article 21 of the Constitution, [I.2.2] Article 14 has been violated [I.2.3] Article 15 has been violated and [I.2.4] Article 19 has been violated. Therefore the decision of the marriage officer ought to be challenged. VIOLATION OF ARTICLE 21 What is natural to one may not be natural to the other. Hence any law or any decision made to tamper with the choice of a spouse would curtail the inherent right embedded in an individual under Article 21 of the Constitution.^8 Right to dignity envisaged under Article 21 of the constitution includes the right to carry such functions and activities as would constitute the meaningful expression of the human self.^9 Hence the decision of the marriage officer is inherently violative of the rights to dignified living, reputation and privacy of the aggrieved. VIOLATION OF ARTICLE 14 Under this article any classification must be reasonable and must have a reasonable nexus between the object and the classification.^10 Hence classification merely based on the disgust toward a particular group of people or a community is manifestly arbitrary and unreasonable.^11 Hence in this case there is a gross violation of article 14 with regards to the conduct of the marriage officer. VIOLATION OF ARTICLE 15 Article 15 provides for the state not to discriminate any person on the basis of sex. Afterall to discharge a consensual act of marriage merely based on the fact the party is of same sex and not the other gender is explicitly discriminatory on the grounds of sex.^12 Hence article 15 is violated in the present case. (^8) Suresh Kumar Koushal&Anr vs Naz Foundation & Ors, (2014) 1 SCC 1 (^9) Francis CoralieMulin v. Administrator, UT of Delhi and others, 1980 AIR 849:1980 SCR (2) (^10) Javed & Ors v. State Of Haryana & Ors, A.I.R. 2003 S.C. 3057 (^11) National Legal Services Authority v. Union of India, AIR 2014 SC 1863 (^12) National Legal Services Authority v. Union of India, WP (Civil) No 400 of 2012
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Law shouldn’t have any chilling effect on the freedom of speech and expression as the Art. 19 (1) protects the fundamental right of freedom of speech and expression; where the Right includes the expression of sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual partner desire, acknowledgment of relationships or any other means^13. In the current instance, the Petitioner has been restricted from solemnising their marriage and thus violating the impugned article. (1.3) ALTERNATIVE REMEDIES NOT A BAR: Article 32 is in itself a Fundamental right and, thereafter where there is well-founded allegation that fundamental right has been infringed alternative remedy is no bar for entertaining writ petition and granting relief.^14 Article 32 is in itself a Fundamental right and, thereafter, the mere existence of an adequate alternative legal remedy cannot be per se be a good and sufficient ground for throwing out a petition under Art. 32 if the existence of a fundamental right and a breach, actual or threatened, of such right and is alleged is prima facie established on the petition.^15 In spite of availability of the alternative remedy, the court may exercise its writ jurisdiction in at least petitions where the petitioner seeks enforcement of any of the fundamental rights.^16. Once the court is satisfied that the fundamental right of an individual is infringed or violated then it is not only its right but also its duty to afford relief to the aggrieved. Thus, the petitioner humbly submits that writ petition is maintainable as existence of alternative remedy is not a bar. (^13) S. Khushboo v. Kanniammal and another, 1983 3 SCC 118 (^14) State of Bombay v. United motors Ltd., AIR 1953 SC 252 (^15) K.K. Kouchunni v. State of Madras, AIR 1959 SC 725 (^16) HarbansalSahnia v. Indian Oil Corporation Ltd., AIR 2003 SC 2120
5 heterosexual couples. In other words homosexual couples also deserves right to be treated equally. As stated in the case of National Legal Service Authority v. UOI , art. 14 does not restrict the word ‘person’ to males and females. 17 The word ‘person’ it also extends to the transgenders who are neither male or female.In the present case the petitioners application was rejected without considering their right under art14 of the constitution. When the petitioner’s application for homosexual was rejected there is existence of high probability that those couples could be treated unequally in the society. It is humbly submitted before this hon’ble court that it is very unlikely that one could see an existence of amble reason for classifying the homosexuals and not solemnising their marriage. Now the social norms have changed after the apex court decision on decriminalising section 377 of IPC. Even the petitioners actions were quite new for the social norms of adisthan in the case of Anu Garg and Others v. Hotel Association of India lays down the priniciple that classification which may have been treated as valid at the tym of its adoption may cease to be so on the account of changing social norms.^18 (2.2) IT IS HUMBLY SUBMITTED BEFORE THE HON’BLE COURT PETITIONERS RIGHT UNDER ART 15 IS VIOLATED BY THE ACT OF REJCETING THEIR APPLICATION TO MARRIAGE Petitioners marriage application was rejected on the ground that its a homosexual marriage. Rejection clearly shows the existence of gender discrimination in the act of marriage officer, Vasanthapuram district, Srinispur. Result of which petitioners violation of right under art 15 came to the lime light. Regardless of the fact that petitioners submitted the notice as per the provisions of SMA, 1954, their marriage application was announced rejected. The heterosexuals were allowed to marry while petitioners who are homosexuals were denied which clearly shows the court that this (^17) National Legal Service Authority v. UOI,WP (Civil)No. 400 of 2012 (^18) Anu Garg and others v. Union of India CWP No. 4692of 1999.
6 discrimination is based on sex. Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, including the ground of ‘sex’^19. It is humbly submitted before the hon’ble court that discriminating petitioners from not solemnizing their marriage would also pave way for consequential problems like restraining the petitioners from the right to property, right to inheritance, right to choose life/sexual partner.Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.^20 Petitioners who are entitled to be treated without sexual discrimination are made to suffer through mental agony through the rejection by the marriage officer. Gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. When the society have no problem in homosexuals people having sexual orientation in their private spaces what problem would there be in them marrying and forming a decent relationship. As there is no existence of reasonable restriction or distinction between the heterosexual and homosexual under art.14, it is really pathetic to deny the marriage rights to through gender petitioner discrimination while the heterosexuals get all the rights or benefits of marriage. The apex court in case of Navtej Singh Johar v. Union Of India, moved away from this narrow view and held that any ground of discrimination, whether direct or indirect, which is founded on a particular understanding of the role of the sex, constitutes discrimination under Article 15 of union of Adisthan.^21 (2.2.1) DISCRIMINATING PETITIONER’S INNATE NATURE Here in the present case, the petitioners are discriminated based on their innate characterstics. In the case of Navtej Singh Johar v. Union Of India , it was held that a classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights and cannot withstand the test of constitutional morality.^22 (^19) National Legal Service Authority v. UOI,WP (Civil)No. 400 of 2012 (^20) National Legal Service Authority v. UOI,WP (Civil)No. 400 of 2012 (^21) Avik Biswas and Savithran ramesh, ‘Supreme court recognises the rights of LGBT community’,Indus Law,2018,https://www.mondaq.com/india/human-rights/737300/supreme-court-recognizes-rights-of-the-lgbt- community (^22) Navtej Singh Johar v. Union of India 2018 (4) KLT 1 (SC).
8 couples are considered as legal union. The petitioners right to form union is violated in the present case. (2.4) IT IS HUMBLY SUBMITTED BEFORE THIS HON’BLE COURT THAT PETITIONERS RIGHT UNDER ART.21 OF THE CONSTITUTION OF ADISTHA N IS VIOLATED. Petitioners application to solemnise their marriage was rejected which resulted in the violation of their right to life. The petitioners also entitled to right to marriage and right to choose sexual parter under art.21 of constitution of Adisthan. (2.4.1) PETITIONER’S RIGHT TO LIVE WITH DIGNITY The word life in the art 21 of the constitution does not mean mere vegatative existence. In the case of Kharak Singh v. State of Uttar Pradesh , it was held that the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. Mere decriminalisation of section 377 of IPC is nothing but a first step.^25 No dignity is derived from mere decriminalisation of section 377 of IPC which would pave path for the petitioners to mere animal existence. To gain the the dignity the civil liberties has to be extended to the petitioners who are homosexuals. Petitioners right to dignity is also affected in the way of not allowing them to choose their life partners. In the case of National Legal Services Authority v. Union Of India, it was held that the gender identity is intrinsic to one’s personality and denial of the said identity which one is entitled to self determine is a violation of his/her dignity.^26 The aspect of freedom to choose sexual identity or to know oneself includes right to choose their own life partner. But the above said right is completely violated for petitoners by not recognising the right to marriage which consequentially leads to act of neglecting the self determination of homosexuals. (2.4.2)PETITIONER’S RIGHT TO CHOOSE THEIR OWN PARTNER It is humbly submitted before the hon’ble court petitioners right to choose their own sexual partner has been held as fundamental right in the case of Navtej Singh Johar v. Union Of India (^25) Kharak singh v.State of Uttar Pradesh,AIR 1963 SC 1925 (^26) National Legal Service Authority v. UOI,WP (Civil)No. 400 of 2012
9 by Chandrachud J.^27 Petitioners have right to choose one’s own partner is a recognized fundamental right under art. 21 of the constitution of Adisthan. Petitioners right to choose the life partner is an important indiviuality factor. In the case of Shakti Vahini v. Union of India , Hon’ble Supreme Court held that the right of an adult to choose one’s own partner is a crucial aspect of individual liberty and the state is powerless to negotiate upon the said lberty. 28 In the present case the one of the petitioner’s father made an objection regarding the marriage to marriage officer which also acted as pivotal point for the rejection of the marriage application. In the case of Shakti Vahini v. Union of India , the court held that consent of the family, community or the clan is not necessary once the two adult individuals agree to enter into the wedlock.^29 The Supreme Court also held, in Re: Indian Woman says gang-raped on orders of Village Court published in Business and Financial News dated 23.01.2014 (2014)4 SCC 786, that the state is duty bound to protect the fundamental rights of its citizens and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. (2.4.3) PETITIONERS RIGHT TO PRIVACY UNDER ART. 21 Here in the present case petitioners right to privacy is denied. The petitioners decision to perform a homosexual marriage derived from their indiviuality and autonomy which comes within the ambit of right to privacy. In the case of K.S.Puttuswamy v. Union of India, court held that privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation , the home and sexual orientation. From the above said judgement it is easily visible that marriage is included in the right to privacy.^30 Also in the case of K.S.Puttuswamy v. Union of India, the court held that privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.^31 (^27) Navtej Singh Johar v. Union of India 2018 (4) KLT 1 (SC). (^28) ShaktiVahini v. Union of India, (2018) 7 SCC 192. (^29) ShaktiVahini v. Union of India, (2018) 7 SCC 192. (^30) K.S. Puttuswamy v. Union of India(2017) 10 SCC 1. (^31) K.S. Puttuswamy v. Union of India(2017) 10 SCC 1.
