Memorial Petitioners

2nd AMITY NATIONAL MOOT COURT COMPETITION
TEAM CODE: M133P
2ND AMITY NATIONAL MOOT COURT COMPETITION, 2017
IN THE HON'BLE SUPREME COURT
OF THE DEMOCRATIC REPUBLIC OF INDICA
AT INDICA
SPECIAL LEAVE PETITION NO.****/2017, SPECIAL LEAVE PETITION NO.****/2017,
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDICA, 1950
CASE CONCERNING IMPLEMENTATION OF UNIFORM CIVIL CODE, CONSTITUTIONAL

VALIDITY OF SECTION 377, INDIAN PENAL CODE AND SURROGACY ACT, 2016.
IN THE CLUBBED MATTERS OF
1. ABBEY
2. ALL INDIA MUSLIM PERSONAL LAW BOARD...........................................PETITIONERS
v.
1. STATE OF JANAKPUR
2. UNION OF INDICA ......................................................................................RESPONDENT
MEMORIAL ON BEHALF OF PETITIONERS
-MEMORIAL ON BEHALF OF PETITIONERS- i

TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................ V
INDEX OF AUTHORITIES ................................................................................................ VI
STATEMENT OF JURISDICTION ...................................................................................... XI
STATEMENT OF FACTS ................................................................................................. XII
STATEMENT OF ISSUES ................................................ ERROR! BOOKMARK NOT DEFINED .
SUMMARY OF ARGUMENTS ......................................................................................... XIV
ARGUMENTS ADVANCED ................................................................................................. 1
I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE

THIS COURT IS MAINTAINABLE.... ......................................................................... 1
A. THE PETITIONER H AS LOCUS STANDI TO APPROACH THE H ONOURABLE

SUPREME COURT ......................................................................................................... 1
B. JURISDICTION OF SUPREME COURT UNDER ARTICLE 136 CAN ALWAYS BE

INVOKED W HEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE ARISES. . 2
1. The Matter Involves Question Of Law Of General Public Importance And

Hence, Entitled To Be Maintainable. ........................................................................ 2
2. The Matter Involves Substantial Question Of Law And Hence Entitled To Be

Maintainable............................................................................................................... 3
II. WHETHER THE IMPLEMENTATION OF UNIFORM CIVIL CODE

VIOLATES ARTICLE 25, 26 AND 29 ENSHRINED UNDER PART III OF THE
CONSTITUTION OF INDIA, 1950. ............................................................................... 3
A. UNIFORM CIVIL CODE IS VIOLATIVE OF ARTICLES 25, 26, 29 AND S ECULARISM

AS A BASIC STRUCTURE OF THE CONSTITUTION. ............................................................... 4
-MEMORIAL ON BEHALF OF PETITIONERS- ii

1. The practices sought to be reviewed by the present SLP are protected by Art.
25 and 26 r/w Art. 29 of the Constitution of India. ................................................... 4
2. Uniform Civil Code Violates Secularism Which Forms A Part of Basic

Structure of the Constitution. .................................................................................... 5
B. PERSONAL LAWS CAN NEITHER BE CHALLENGED AS VIOLATIVE OF
FUNDAMENTAL RIGHTS NOR CAN IT BE RE -WRITTEN IN THE NAME OF SOCIAL NORMS . 6
1. Personal laws cannot be challenged as being violative of Part III of the

Constitution ................................................................................................................ 6
2. Personal laws cannot be re-written in the name of Social Reform ................... 7
C. PRACTICES UNDER MUSLIM PERSONAL LAW ARE BASED ON HOLY SCRIPTURES
AND THE COURT CANNOT SUPPLANT ITS OWN INTERPRETATION TO THEM . ................. 7
1. Implementation of Uniform Civil Code is a matter of legislative policy. .......... 7
2. Practices in Muslim Personal Law are based on holy scriptures- Al Quran

and sources based on Al-Quran................................................................................. 8
3. Courts cannot supplant its own interpretations over the text of scriptures. ..... 9
D. UNIFORM CIVIL CODE UNDER ARTICLE 44 IS ONLY A DIRECTIVE PRINCIPLE OF
STATE POLICY AND IS NOT ENFORCEABLE. ..................................................................... 10
III. WHETHER THE SURROGACY ACT, 2016 IS CONSTITUTIONALLY

VALID. ............................................................................................................................ 10
A. ACTION OF THE STATE VIOLATES THE RIGHT TO EQUALITY................................. 11
1. Section 377 IPC and The Surrogacy Act, 2016 are oppressive to minority in
community. ............................................................................................................... 11
2. A rule whose ingredients are vague in nature is arbitrary and unreasonable.

12
a) Classification must be founded on an intelligible differentia. .................. 13
-MEMORIAL ON BEHALF OF PETITIONERS- iii

b) Classification or differentia must have reasonable nexus to the object

sought to be achieved ........................................................................................... 14
3. Differentiation on the basis of sex violates Article 15 ..................................... 14
B. BAN ON COMMERCIAL SURROGACY AND HOMOSEXUALITY VIOLATES ARTICLE

19.................. ........................................................................................................................ 15
C. BAN ON COMMERCIAL SURROGACY VIOLATES RIGHT TO LIFE UNDER ART. 21.16
1. Right to life of an individual includes right to privacy inclusive of right to

family formation" and right to reproductive autonomy ......................................... 16
2. Right of Homosexuals to undergo surrogacy .................................................. 18
D. THE IMPUGNED ACT VIOLATES VARIOUS INTERNATIONAL OBLIGATIONS .......... 18
E. SECTION 377 OF IPC IS NOT IN STATE INTEREST ............................................... 19
F. SECTION 377 PREVENTS HEALTH IMPEDIMENTS ................................................. 19
PRAYER ................................................................................................................................... 21
-MEMORIAL ON BEHALF OF PETITIONERS- iv

LIST OF ABBREVIATIONS
& And
Section
AIMPLB All India Muslim Personal Law Board
AIR All India Reporter
Anr. Another
A.P Andhra Pradesh
Govt. Government
ICCPR International Covenant on Civil and Political Rights
IPC Indian Penal Code
Ltd. Limited
Ors. Others
P. Page
SCC Supreme Court Cases
SC Supreme Court
SLP Special Leave Petition
U.P. Uttar Pradesh
Vol. Volume
v. Versus
W.B. West Bengal
-MEMORIAL ON BEHALF OF PETITIONERS- v

INDEX OF AUTHORITIES
CASES
Aga Mohamad Jaffer Bindanim v. Coolsoom Beebee and Ors. (1898) ILR 25 Cal. 9 ............ 10
Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573. ................................. 8
Anuj Garg v. Hotel Asscociation of India (2008) 3 SCC 1 ...................................................... 16
Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 ........................................................ 17
Arunachalam v. P.S.R. Sadhanantham and Anr. (1979) (2) SCC 297......................................1
Associated Cement Companies Ltd v. P.N. Sharma (1965) 2 SCR 366....................................1
Athiest Society of India v. Govt. Of Andhra Pradesh, AIR 1992 AP 310 .................................. 5
B. K. Parthasarthi v. Government of Andhra Pradesh AIR 2000 AP 156; Govind v. State of

M.P. (1975) 2 SCC 148 ........................................................................................................ 18
Bachan Singh, Sher Singh And Anr. v. State Of Punjab And Ors, AIR 1982 SC 1325 ............ 13
Baker Ali Khan v. Anjuman Ara Begum, 30 I.A. 94................................................................. 10
Balakrishna v. Rmaswami, AIR 1965 SC 195. ........................................................................... 2
Banwari Lal v. Trilok Chand, AIR 1980 SC 419.......................................................................2
Baqar Ali v. Anjuman (1902) 25 All. 236 ................................................................................ 10
Barsay v. Bombay AIR 1961 SC 1762.......................................................................................2
Bd of. Trustee of the port of Bombay v. Nandakarni Dilip Kumar Raghavendra AIR 1983 SC
109........................................................................................................................................17
Belgian Linguistic case, (1968) 11 Y.B.E.C.H.R 832 (N.33-34).............................................. 11
Bommai v. Union of India, (1994) 3 SCC 1. .............................................................................. 5
C.C.E v. Standard Motor Products, AIR1989 SC 1298............................................................2
-MEMORIAL ON BEHALF OF PETITIONERS- vi

Cf. Ghulam v. State of UP, AIR 1981 SC 2198; Mithar v. Union of India, AIR 1983 SC 1. ..... 6
Chettiar v. Chettiar, AIR 1968 SC 915. ..................................................................................... 2
Confederation of Ex Serviceman Ass. v. Union of India , AIR 2006 SC 2945 ......................... 17
Consumer Education & Research Centre v. Union of India(1995) 3 SCC 42 ........................ 17
Coralie Mullin v. Administrator,AIR 1981 SC 746 ................................................................. 17
D.T.C. v. Mazdoor Congress Union D.T.C. AIR 1991 SC 101 ................................................ 17
Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212. .............................. 3
Daniel Latifi and Anr.v. Union of India(2001) 7 SCC 740 ........................................................ 8
Deepak Sibal v. Punjab University, AIR1989 SC 903 ............................................................ 14
Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137................................................................2
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. AIR 1954 SC 520......................1
E.R.J.Swami v. State of Tamil Nadu, AIR 1972 SC 1586. ......................................................... 5
Fertiliser Corpn. v. Union of India, AIR 1981 CSC 344 ........................................................ 16
Francis Coralie Mullin v. Union Territory of India ................................................................ 17
Gobind v. State of M.P 1975 Cri.LJ 1111................................................................................ 20
H v. S.(Surrogacy Agreement) [2015] EWFC 36. ................................................................... 19
Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359. ........................... 2
In the matter of Jacob 86 NY2d 651 (1995). ............................................................................ 19
Ismail v. Union of India, (1994) 6 SCC 360. ............................................................................. 5
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214. ............... 2
Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim and Ors. (1976) 2 SCC 917...1
-MEMORIAL ON BEHALF OF PETITIONERS- vii

Krishna Singh v. Mathura Athir (1981) 3 SCC 689. ................................................................. 6
Lily Thomas and Ors. v. Union of India(2000) 6 SCC 224 .................................................... 11
Maharshi Avadhesh v. Union of India 1994 Supp (1) SCC 713. ............................................... 8
Minerva Mills Ltd. & Ors v. Union Of India & Ors, AIR 1980 SC 1789 ................................ 11
Mohini v. State of Karnataka, AIR 1992 SC 1858 ................................................................... 11
Moonshee Buzloor Ruheem v. Shumsoon-niss Begum (1867) 11 Moo. IA 551 ....................... 11
N Suriyakala v. A Mohan Doss & ors. (2007) 9 SCC 196.........................................................2
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036. ........................................ 2
National Legal Services Authority v. Union of India, (2014) 5 SCC 438 ................................ 11
National Legal Services.Authority v. Union Of India & Ors, AIR 2014 SC 1863 .................. 16
Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 ........................................................................ 8
Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26. .......................................................... 1
Olga Tellis v. Bombay Corpn., AIR 1986 SC 180 .................................................................... 17
Om kumar v. Union Of India , AIR 2000 SC 3689 .................................................................. 13
P.S.R. Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC 141.........................................1
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 ............. 13
Pritam Singh v. State, AIR 1950 SC 169. ................................................................................... 1
Rubinder Singh v.Union of India, AIR 1983 SC 65 ................................................................. 13
Sardar Sydena Taher Saifuddin Sahed v. State of Bombay, AIR 1962 SC 853. ........................ 7
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538 ........................ 13
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR
1962 SC 1314. ........................................................................................................................ 3
-MEMORIAL ON BEHALF OF PETITIONERS- viii

State of Bombay v. Narasu Appa Mali AIR 1952 Bom. 84 ........................................................ 6
State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081. ................................... 5
State of Karnataka v. State of Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007 decided
on December 9, 2016. ............................................................................................................ 2
State of Maharashtra v Chandrabhan, AIR 1983 SC 803 ....................................................... 17
Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496............................ 5
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt, AIR 1954 SC 282. ................................................................... 10
Union Carbide Corporation and Ors. v. Union of India and Ors. (1991) 4 SCC 584. ............. 1
Union of India v. Deokinandan Aggrawal (1992) Supp (1) SCC 323 ....................................... 8
OTHER AUTHORITIES
Abigail Lauren Perdue, For Love or Money: An Analysis of the Contractual Regulation of
Reproductive Surrogacy The Journal of Contemporary Health, Law and Policy 286 (2011)
.............................................................................................................................................. 16
Adams, Charles J. Islamic Faith" in Introduction to Islamic Civilization, Cambridge UP,)

R.M. Savory (1976. ed.). ........................................................................................................ 9
Bernard G. Weiss, Search for God's Law: Islamic Jurisprudence in the Writings of Sayf Al
Din Al Amidi, University of Utah Press, U.S., p. 181 (Dec 1992). ....................................... 9
DeanHamer and P. Copeland The Science Of Desire: The Search For The Gay Gene And The
Biology Of Behavior (Simon and Schuster, New York, 1994). ........................................... 18
International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the

application of international human rights law in relation to sexual orientation and gender
identity, March 2007 ...................................................................................................... 12, 18
International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-
20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 ......................................................................... 20
-MEMORIAL ON BEHALF OF PETITIONERS- ix

Jennifer L. Watson, Growing a Baby for Sale or Merely Renting a Womb: Should Surrogate
Mother be Compensated for their Services? Whittier Journal of Child and Family
Advocacy 545 (2007 ............................................................................................................ 16
Kiyas in HAR Gibb and JH Kramers (eds), Shorter Encyclopaedia of Islam (Ithaca, NY,
Cornell University Press, 1953) 267 ...................................................................................... 9
Lane Tim Dean, Homosexuality And Psychoanalysis (The University of Chicago Press,
Chicago, 2001). .................................................................................................................... 18
P. Geetha v. The Kerala Livestock Development Board ......................................................... 19
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948)
.............................................................................................................................................. 20
Wael B. Hallaq, The Formation of Islamic Law (Formation of the Classical Islamic World,
27), Ashgate Publishing, 259-260 .......................................................................................... 9
BOOKS
2, Ramanatha Aiyer , Advanced law Lexicon, 2391 (3rd Edn. 2005) ...................................... 14
Abdul Rahim, Muhammadan Jurisprudence, 73 (2004 Edition) ............................................... 9
Mulla, Mohammedan Law, 15 (Dwivedi Law Agency, 2nd edition, 2007). ............................. 7
Robert Aldrich, Gay and Lesbian History, in Gay Life and Culture: A World History, 11
(New York: Universe Publishing, 2006 ............................................................................... 12
Tahir Mahmood, Muslim personal Law, 200 (1972). ................................................................ 6
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Y.V. Chandrachud

& S.S. Subbramani & V.R. Manohar & B.P. Banerjee eds., Vol. 2, 8th ed. 2012
D.D. Basu, Commentary on the Constitution of India, Y.V. Chandrachud & S.S.
Subbramani & V.R. Manohar & B.P. Banerjee eds., Vol. 3, 8th ed. 2012
Justice M.N Ventakachaliah, Report Of The National Commission To Review The Working
Of The Constitution Of India., Electoral Process and Political Parties 7 (2000
-MEMORIAL ON BEHALF OF PETITIONERS- x

STATEMENT OF JURISDICTION
THE PETITIONERS HAVE THE HONOUR TO S UBMIT BEFORE THE HONBLE SUPREME
COURT OF INDICA, THE MEMORANDUM FOR THE APPELLANT UNDER ARTICLE 136
(SPECIAL LEAVE PETITION) OF THE CONSTITUTION OF INDIA, 1950.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.
-MEMORIAL ON BEHALF OF PETITIONERS- xi

STATEMENT OF FACTS
The material case arises out of a Special Leave Petition filed by Abbey and the All Indica
Muslim Personal Law Board against the State of Janakpur before the Supreme Court of
Indica to prevent implementation of Uniform Civil Court as well as to strike down Section
377, IPC and The Surrogacy Act, 2016.
I. BACKGROUND:
Indica is a secular country having diverse religions. The state does not own loyalty to any
particular religion and gives its citizens the freedom to practice their religion. Several cases
arose in the state involving the implementation of a Uniform Civil Code.
II. IMPLEMENTATION OF UNIFORM CIVIL CODE:

The first case involved a Muslim couple Aslam Khan and Nazia Yusuf where the wife was
not being provided adequate maintenance by the husband on divorce. She filed a suit in the
court of Chief Judicial Magistrate which ordered for maintenance of Rs. 6000 per month,
aggrieved by which she with the help of an NGO JAN KALYAN filed a writ petition in the
High court of Janakpur for enhancement of maintenance. JAN KALYAN filed another
petition in the the High court of Janakpur in a case involving a Hindu married couple
Ranvijay Kapoor and Sunita Mehra, where the husband in order to circumvent the law
against bigamy converted his religion to Muslim. JAN KALYAN clubbed both the issues
and claimed that Uniform Civil Code should be made and implemented throughout the
country.
III. PASSING OF THE SURROGACY ACT, 2016:

In the meantime another case involving the issue of surrogacy done by homosexuals came up
involving a Christian homosexual couple, Abbey and Aldo who underwent the procedure of
surrogacy to start a family but were denied the custody of the baby, which was given birth by
the surrogate mother Radhika Ghosh, by the passing of The Surrogacy Act, 2016 which
placed a ban on homosexuals and live-in couples from opting for surrogacy. The dispute was
brought in front of the High court of Janakpur.
-MEMORIAL ON BEHALF OF PETITIONERS- xii

IV. VERDICT OF THE HIGH COURT:

After hearing the matter the High court of Janakpur held homosexuality to be an offence
under section 377 of IPC and that homosexuals does not have any right over the child born
banning commercial surrogacy. The court also directed the parliament that Uniform civil
code should be drafted and implemented and notwithstanding the separate Muslim Personal
Law system entitled Nazia Yusuf to be given maintenance u/s 125 of CrPC. The court also
declared Ranvijay Kapoors second marriage to be void.
V. INSTANTANEOUS SPECIAL LEAVE PETITION

Aggrieved by the decision of the High court of Janakpur, Abbey filed a SLP challenging the
validity of Section 377 of IPC and Surrogacy Act 2016. All Indica Muslim Personal Law
Board also filed a SLP representing the whole Muslim community, claiming that the direction
given by the High Court for drafting of Uniform Civil Code is violating the secularism which
is a part of the basic structure of the Constitution included Article 25 & 26. Both the SLPs
were clubbed and admitted by the Supreme Court of Indica.
-MEMORIAL ON BEHALF OF PETITIONERS- xiii

ARGUMENTS PRESENTED
-I-
WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS

MAINTAINABLE.
-II-
WHETHER THE IMPLEMENTATION OF UNIFORM CIVIL CODE IS VIOLATIVE

OF ARTICLES 25 AND 26 OF THE CONSTITUTION.
-III-
WHETHER SECTION 377 IPC AND THE SURROGACY ACT, 2016 ARE
CONSTITUTIONALLY VALID.
-MEMORIAL ON BEHALF OF PETITIONERS- xiii

SUMMARY OF ARGUMENTS
I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE.
It is humbly submitted to this Honble Court that under Article 136 of the Constitution of India,
any person, aggrieved by any order or decision of any court in India can approach the Supreme
Court through a Petition for Special Leave. The Petitioner has the locus standi to approach the
Honble Supreme Court as civil appeals not covered by Article 133 can be brought to the apex
court under Article 136. Furthermore, the jurisdiction of Supreme Court can always be invoked
when a question of law of general public importance arises. Also, in case at hand the
substantial questions of law are involved. The jurisdiction conferred under Art. 136 on the SC
is a corrective one and not a restrictive one. The questions of implementation of Uniform Civil
Code, criminalization of homosexuality and regulation of surrogacy are substantial question of
law and of general public importance. Hence Article 136 can be invoked for the same.
II. WHETHER THE IMPLEMENTATION OF UNIFORM CIVIL CODE IS

VIOLATIVE OF ARTICLES 25 AND 26 OF THE CONSTITUTION.
Uniform Civil Code under Article 44 is only a directive principle and cannot be enforced. It
violates Secularism which forms a part of the basic structure of the Constitution. The principle of
equality is a positive concept of equal treatment of all religions and such implementation would
be discriminatory and counter- productive. The issue raised in the instantaneous matter is that of
public policy and the best forum to address it is the legislature since the courts do not have the
power to legislate. The doctrine of separation of power is also a part of the basic structure of the
constitution and no separate organ can take over the functions of each other. Personal laws being
derived from authoritative sources cannot be challenged to infringe fundamental rights and
cannot be written again in the name of social reform. The practices of marriage, maintenance and
divorce are protected under Articles 25 and 26 so as to preserve the exclusivity of each religion.
-MEMORIAL ON BEHALF OF PETITIONERS- xiv

The Court is not empowered to grant its own interpretation to the text of scriptures and the
practices of Muslims are mostly based on them.
I I I. WHETHER SECTION 377 IPC AND THE SURROGACY ACT, 2016 ARE
CONSTITUTIONALLY VALID.
Any act would be struck down if it is not found to be valid on the touchstone of the Constitution.
The amendment is not good in the eyes of the law as: 1.] The legislative action in this case is
arbitrary as there is substantive unreasonableness in the act; 2.] Section 377 and the Surrogacy
Act fail to pass the test of permissibility which makes them violative of Article 14; 3.] They
restrict the Right to Life by being restrictive of reproductive autonomy and family formation of
an individual; 4] They violate international obligations and do not conform to the ideals of
Article 21. Criminalization of homosexuality does not curb health impediments, and such The
Act only takes away the Right to Privacy from them.
-MEMORIAL ON BEHALF OF PETITIONERS- xv

ARGUMENTS ADVANCED
I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT.
It is humbly submitted that the Special Leave Petition against the judgment of Honble High
Court is maintainable under Article 136 of the Constitution of India. Article 136 empowers
the Supreme Court to grant in discretion Special leave to Appeal from any judgement, decree,
determination, sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India.1 It is humbly submitted that powers under Article 136 can be
exercised against any kind of judgement or order which is causing injustice to any party, and
to serve the need, the power under Article 136 is unfettered.2
This SLP is maintainable as, firstly the petitioner has locus standi to approach the
Honourable SC [A], secondly the matter involves question of general public importance
involving a substantial question of law.[B]
A. THE PETITIONER HAS LOCUS STANDI TO APPROACH THE HONOURABLE SUPREME

COURT
It is humbly submitted before this Honourable SC that the appellant has locus standi to
approach the Honourable SC in the present case. Article 136 of the Constitution is couched in
the widest phraseology.3 This Court's jurisdiction is limited only by its discretion.4 It is
pertinent to note that the scope of Article 133 providing appeals to the SC in civil matters is
limited whereas Article 136 is very broad-based & confers discretion on the court to hear in
any cause or matter.5 The plenitude of power under Article 136 of the Constitution has been
authoritatively stated by the Constitution Bench in Durga Shankar Mehta v. Thakur
1
Art. 136, Constitution of India, 1950.
2
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. AIR 1954 SC 520; Associated Cement Companies
Ltd v. P.N. Sharma (1965) 2 SCR 366; Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim and
Ors. (1976) 2 SCC 917; Arunachalam v. P.S.R. Sadhanantham and Anr. (1979) (2) SCC 297; P.S.R.
Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC 141; Union Carbide Corporation and Ors. v. Union of
India and Ors. (1991) 4 SCC 584.
3
Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26.
4
Ibid
5
Pritam Singh v. State, AIR 1950 SC 169.
-MEMORIAL ON BEHALF OF PETITIONERS- 1

Raghuraj Singh and Ors.6 and the exercise of the said power by the Court cannot be
curtailed by the original constitutional provision or by any statutory provision. 7 Therefore,
civil appeals may be brought to the SC under article 136 when these are not covered by
Article 133.8
B. JURISDICTION OF SUPREME COURT UNDER ARTICLE 136 CAN ALWAYS BE

INVOKED WHEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE ARISES.
The jurisdiction conferred under Art. 136 on the SC are corrective one and not a restrictive
one9. A duty is enjoined upon the SC to exercise its power by setting right the illegality in the
judgments is well-settled that illegality must not be allowed to be perpetrated and failure by
the SC to interfere with the same would amount to allowing the illegality to be perpetuated2
.It has been held in plethora of cases that when the question of law of general public
importance arises, the jurisdiction of SC can be invoked by filing special leave petition. In the
present case, the issue involves matter of General Public Importance [1] and substantial
question of law [2].
1. The Matter Involves Question Of Law Of General Public Importance And

Hence, Entitled To Be Maintainable.
It has been held by this Honble Court that when a question of law of general public
importance arises, or a decision shocks the conscience of the court, its jurisdiction can always
be invoked. Article 136 is the residuary power of SC to do justice where the court is satisfied
that there is injustice.10 The principle is that this court would never do injustice nor allow
injustice being perpetrated for the sake of upholding technicalities.11 In any case, special
leave would be granted from a second appellant decision only where the judgment raises
issue of law of general public importance12. In the case at hand, rights of thousands of
homosexuals are in question. Also, the implementation of Uniform Civil Code will have an
impact on public at large. Hence, the matter concerned is a matter of public interest and
national importance the same was reiterated by the High court. Hence, it is humbly submitted
6
AIR 1954 SC 520.
7
State of Karnataka v. State of Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007 decided on December 9,
2016.
8
Barsay v. Bombay AIR 1961 SC 1762; Banwari Lal v. Trilok Chand, AIR 1980 SC 419; Digvijay Singh v.
Pratap Kumari, AIR 1970 SC 137; Chettiar v. Chettiar, AIR 1968 SC 915.
9
Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359.
10
C.C.E v. Standard Motor Products, AIR1989 SC 1298; N Suriyakala v. A Mohan Doss & ors. (2007) 9 SCC
196; Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036.
11
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214.
12
Balakrishna v. Rmaswami, AIR 1965 SC 195.

before this court that the matters involves question of law of general public importance and
therefore, the appeal is maintainable under article 136 of the Constitution of India.
2. The Matter Involves Substantial Question Of Law And Hence Entitled To Be

Maintainable.
Where findings are entered without considering relevant materials and without following
proper legal procedure, the interference of the Supreme Court is called for. 13 The expression
"substantial question of law" is not defined in any legislation. Nevertheless, it has acquired a
definite connotation through various judicial pronouncements. A Constitution Bench of the
Apex Court, while explaining the import of the said expression, observed that: The proper
test for determining whether a question of law raised in the case is substantial would, in our
opinion, be whether it is of general public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an open question in the sense that
it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not
free from difficulty or calls for discussion of alternative views.14 In the present case, the
question of law involved in appeal is regarding the validity of Section 377 of IPC, the rights
of homosexuals to claim their child born out of surrogacy and implementation of Uniform
Civil Code. The questions raised by the Appellants involve substantial questions of law, as
would be shown in the subsequent submissions, and the same requires to be adjudicated by
this Honble Court.
Hence, the case involves the matter of general public importance and it directly and
substantially affects the rights of the parties as the order is erroneous and prejudicial to the
interest of the petitioners. It is humbly submitted that substantial and grave injustice has been
done to the rights of the petitioner and that the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against.
II. WHETHER THE IMPLEMENTATION OF UNIFORM CIVIL CODE

VIOLATES ARTICLE 25, 26 AND 29 ENSHRINED UNDER PART III OF
THE CONSTITUTION OF INDIA, 1950.
It is humbly submitted that uniform civil code is violative of fundamental rights enshrined
under Art. 25, 26 and 29 as well as of secularism which forms part of the basic structure of
13
Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212.
14
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314.

the Constitution[A]. Personal laws can neither be challenged as violative of fundamental

rights nor can it be re-written in the name of social norms[B]. Implementation of Uniform
civil code is a matter of legislative policy and thus outside the jurisdiction of the court.
Muslim Personal Law provides for the practices to be followed on the issues of Marriage,
Divorce and Maintenance and these practices are based on holy scriptures- Al Quran and
sources based on Al-Quran. Hence, the court cannot supplant its own interpretation over the
religious scriptures[C]. Moreover, Uniform Civil Code under Article 44 is only a Directive
Principle of State Policy and is not enforceable [D].
A. UNIFORM CIVIL CODE IS VIOLATIVE OF ARTICLES 25, 26, 29 AND SECULARISM AS A
BASIC STRUCTURE OF THE CONSTITUTION.
1. The practices sought to be reviewed by the present SLP are protected by Art. 25
and 26 r/w Art. 29 of the Constitution of India.
Amongst other freedoms guaranteed under the provisions of the Constitution, the most
cherished one is the freedom of conscience as contained in Articles 25 and 26 of the
Constitution. The preamble clearly enshrines values of liberty of thought, expression, belief,
faith, worship. Further, Article 25 of the Constitution, guarantees freedom of conscience and
freedom to profess, practice and propagate religion. Article 25 guarantees individual freedom
of conscience subject to public order, morality and health and to the other provisions of the
third part of the Constitutions. Article 26 of the Constitutions grants freedom to every
religious denomination or any section thereof to manage its own affairs in matters of
religion.
It is submitted that Religion is the matter of faith and conscience. Muslim Personal Law
being the very core of Islamic religious faith amalgamates in itself belief, 'practice' and
propagation' as guaranteed under Art. 25 and 26 r/w Art. 29 of the Constitution. The
protection of Article 25 and 26 is not limited to matters of doctrine or belief, but it extends to
the acts done in pursuance of religion and therefore contained a guarantee for rituals and
observances, ceremonies and modes of worship which are integral parts of religion.15What is
essential part of a religion or what its religious practice has to be judged in the light of its
doctrine and such practices as are regarded by the community as a part of its religion must
also be included in them.16The Petitioner contends that the practice of marriage, maintenance
and divorce differs in each religion since each religion views them in a different context. The
15
E.R.J.Swami v. State of Tamil Nadu, AIR 1972 SC 1586.
16
Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496.

practices in a religion are therefore peculiar to that particular religion only. Thus, a religion
cannot be adjudged as being unequal in rights to another religion. These practices have been
protected under Art. 25, 26 and 29 so that the exclusivity of each religion is protected.
Therefore, the Petitioner humbly submits that the practices in the instant matter are protected
by Articles 25, 26 r/w 29 and implementation of a Uniform Civil Code would be in violation
of it.
2. Uniform Civil Code Violates Secularism Which Forms A Part of Basic
Structure of the Constitution.
Secularism means that the State should have no religion of its own, and no one could
proclaim to make the State house or endeavour to create a theoretic state. Each person
whatever be his religion, must get assurance from the State that he has the protection of law
freely to profess, practice and propagate his religion and freedom of consciences. Secularism
is a part of fundamental law and an inalienable segment of the basic structure of the
Constitution17. The word Secular exists only in the Preamble of the Constitution and it
embodies the quintessence of diverse facets of secularism and secularism is a goal as well as
a process18.
The petitioner submits that the principle of equality as between all religions is more than a
passive attitude of religious toleration. It is a positive concept of equal treatment of all
religions19. The word secular highlights the fundamental rights guaranteed by Arts. 25 to
29.20 It was further held that Secularism is absolute; the State may not treat religions
differently on the ground that public order requires it.
The Petitioner humbly submits that the grievance faced by the AIMPLB is one that Muslims
throughout the State would face and the Court cannot strike down a law as anti-secular. If a
Court has to strike down a law as anti-secular, it will do so only if it can hold that law is
violative of any of the Articles from 25 to 29.21
It is submitted that the State has not only failed to implement a Directive22, it has violated the
norm of the much wanted secularism embodied in the Preamble of the Constitution itself.
It is humbly submitted that a uniform law, though it is highly desirable, enactment thereof in
one go perhaps may be counter-productive to unity and integrity of the nation.
17
State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081.
18
Athiest Society of India v. Govt. Of Andhra Pradesh, AIR 1992 AP 310.
19
Bommai v. Union of India, (1994) 3 SCC 1.
20
Ismail v. Union of India, (1994) 6 SCC 360.
21
Cf. Ghulam v. State of UP, AIR 1981 SC 2198; Mithar v. Union of India, AIR 1983 SC 1.
22
Tahir Mahmood, Muslim personal Law, 200 (1972).

B. PERSONAL LAWS CAN NEITHER BE CHALLENGED AS VIOLATIVE OF FUNDAMENTAL
RIGHTS NOR CAN IT BE RE-WRITTEN IN THE NAME OF SOCIAL NORMS
It is humbly submitted by the Petitioner that the Honble Court has no power to introduce its
own modern concepts in applying personal laws of the parties and has to enforce the law as it
is derived from authoritative sources. It is submitted that the court cannot examine the
constitutional validity of practices of marriage, maintenance or divorce in Muslim law since
Part III of the Constitution does not imbibe personal laws of the parties23.
1. Personal laws cannot be challenged as being violative of Part III of the
Constitution
The Honble Court in State of Bombay v. Narasu Appa Mali24 has observed that since the
issues related to personal law fall under item 5 in the concurrent List III, it is competent only
for the State or the Legislature to legislate upon them. The Court further observed that the
framers of the Constitution did not intend to include personal laws within the expression
laws in force since they did not want them to be challenged with respect to fundamental
rights. Considering this view, the constitutional validity of the practices of marriage, divorce
and maintenance in Muslim personal law cannot be challenged25.
Article 13 does not provide for personal laws as under the words a custom or usage in
Article 13(3). A custom or usage is distinct or exceptional to personal law. The phrase
personal law has been mentioned in Entry 5 of List III which means-
a) That such omission was conscious.
b) That the intention was to leave these personal laws to the scrutiny of the
legislature and not the judiciary.
Furthermore, if personal laws are made open to analysis under Article 13, both Articles 17
and 25(2) would become redundant since they would find remedy as a violation of
fundamental rights26.
Therefore, it is humbly submitted by the Petitioner that the foundational source of personal
law are their respective scriptures. They do not derive their validity from any legislative
authority. The Mohammedan Law is essentially founded on the Holy Quran and thus cannot
fall within the purview of laws in force in Article 13 and hence its validity cannot be tested
as against fundamental rights in part III of the Constitution.
23
Krishna Singh v. Mathura Athir (1981) 3 SCC 689.
24
AIR 1952 Bom. 84.
25
Supra note 1.
26
Supranote 9.

2. Personal laws cannot be re-written in the name of Social Reform

It is submitted by the Petitioner that social reform is to be brought gradually in the
community keeping in view that such community is ready for the reform.The exception to the
Freedom of Religion as provided in Article 25(2) enabling the state to make laws for social
welfare and reform cannot enable the legislature to reform a religion out of its existence or
identity27.
The Petitioner humbly submits that different religions look upon institutions such as marriage
differently, and therefore the issues of marriage, divorce and maintenance are dealt in
different manners by different religions. Thus, even in bringing in a social reform, changing
practices or acts done in pursuance of the religion is not permissible.
C. PRACTICES UNDER MUSLIM PERSONAL LAW ARE BASED ON HOLY SCRIPTURES AND
THE COURT CANNOT SUPPLANT ITS OWN INTERPRETATION TO THEM.
1. Implementation of Uniform Civil Code is a matter of legislative policy.

It is humbly submitted before this Honble Court that the questions in issue in the instant
matter are a concern of the legislative policy of the state with which the courts do not usually
have any concern. Muslim law in its original concept is a command of God as revealed to
humans through Quran, sayings and actions of the Prophet. No, human, whatever his spiritual
or otherwise status maybe, has a right to change, alter or amend these laws. Furthermore,
there are direct or indirect revelations through the Prophet in matters of religion and laws, so,
in Islam, nobody other than the God, can have legislative power28. The issues related to
validity of polygamy, unilateral talaq without resorting to judicial processes of court, taking
of more than one wife amounting to cruelty under Muslim law are matters wholly involving
issues of State policies and held that they should be dealt with by the legislature29.
The Honble Court in a petition seeking a writ of mandamus to consider the question of
enactment of a common Civil Code for all citizens of the state along with declaration of
Muslim Women (Protection of Rights on Divorce) Act, 1986 as void and Sharia law as
adversely affecting the dignity and rights of Muslim women while dismissing the petition
held that these were matters to be looked after by the legislature and the court cannot legislate
in these matters30.
The Honble Court pointed out whether a provision of divorce by mutual consent should be
included in the Indian Divorce Act is a matter of legislative policy and the courts cannot
27
Sardar Sydena Taher Saifuddin Sahed v. State of Bombay, AIR 1962 SC 853.
28
Mulla, Mohammedan Law, 15 (Dwivedi Law Agency, 2nd edition, 2007).
29
Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573.
30
Maharshi Avadhesh v. Union of India 1994 Supp (1) SCC 713.

extend legislative policy by adding provision to the statute which was never enacted there31.
Similarly in Naveen Kohli v. Neelu Kohli32 it was held that the question of inclusion of
irretrievable breakdown of marriage as a ground of divorce was for the Legislature to decide.
It is not the duty of the court to enlarge the scope or intention of the legislature. The court
cannot rewrite, recast or reframe the legislation for the very good reason that it has no power
to legislate. The power to legislate has not been conferred on the court33.
[Arguendo] If it is assumed that the rights of women are being violated under Muslim
personal law, any governance in this regard will again amount to legislative action. It is
humbly submitted that the Honble Court has upheld the validity of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 in protecting the rights of Muslim women with
regard to divorce and maintenance in Daniel Latifi & Anr. V. Union of India34. In this
scenario if the Honble court prescribes other measures to govern the rights of Muslim
women, it will amount to judicial legislation and will be violative of doctrine of separation of
power.
In view of the above, the petitioner humbly submits that the examination of questions of
Muslim personal law related to matters concerning marriage, divorce and maintenance would
amount to judicial legislation. It is reiterated that the Honble Court on many occasions as
mentioned above has declined to entertain such matters by taking the view that they are to be
dealt by the legislature and nit the judiciary. Therefore, the judiciary cannot usurp the
functions of the legislature.
2. Practices in Muslim Personal Law are based on holy scriptures- Al Quran and
sources based on Al-Quran.
The Petitioner humbly submits that the primary source of laws in Muhammadan system is
based on revelations compiled in the Quran and the Hadith which form the authentic sources
of Islamic Shariah35. The issues raised by this SLP are ascribed in these sources. For the sake
of convenience the Petitioner highlights the important sources of Islam.
The Holy Quran which is the word of God as revealed to Prophet Muhammad is the first and
supreme source of Islamic law.36 It is the foundation of muslim religion and the fountain of
Islamic law. Hadith which is next to the Quran as a major source of Islamic Shariah,
31
Reynold Rajamani v. Union of IndiaAIR 1982 SC 1261.
32
(2006) 4 SCC 558.
33
Union of India v. Deokinandan Aggrawal (1992) Supp (1) SCC 323.
34
(2001) 7 SCC 740.
35
Abdul Rahim, Muhammadan Jurisprudence, 73 (2004 Edition).
36
Adams, Charles J. Islamic Faith" in Introduction to Islamic Civilization, Cambridge UP,) R.M. Savory
(1976. ed.).

enshrines that the command of the Prophet and his Quranic rulings must be obeyed without
any deviation.37 As a legal document in shariah courts, hadith is a compilation and
interpretation of the custom or usage of the earliest believers of Islam. 38 The Companions
learnt the details of the Islamic faith directly from the Prophet and observed his conduct day
and night. Jurists therefore consider their rulings a binding, next to the Quran and Hadith.39
Consensus signifies the agreement of all competent persons on an issue. These persons
should be, in the opinion of the Muslim community, worthy of inferring rulings from
theQuran and other sources of Shariah. Taken in this sense, consensus also forms an
important source of Shariah.40
Thus as mentioned above, all the sources of Muslim Personal law have been approved and
endorsed by the Holy Quran and the practices of marriage, divorce and maintenance etc. are
based on such sources all of which flow from the Holy Quran itself and are not amenable to
any amendment, interpretation or alteration.
The Shariat Application Act in India protects the application of Islamic laws in personal legal
relationships. It clearly states that in matters of personal disputes, the State shall not interfere
and a religious authority would pass a declaration based on his interpretations of the Quran
and the Hadith. Thus, it is submitted that the issues arising in the present matter can only be
decided as per Muslim Personal Law, which derives its sanctity from the Holy Quran and
Hadith. It is submitted that principles of Marriage, Talaq and Polygamy are inter woven with
religious and cultural rights of a Muslims.
3. Courts cannot supplant its own interpretations over the text of scriptures.
The Petitioner humbly submits that the Court has on making occasions refrained from
making pronouncements to interpret religious scriptures.
It has been held that Articles 25 and 26 protect the essential part of religion and that when a
question arises as to what constitutes essential part of religion, the same should primarily be
ascertained with reference to the Doctrines of that religion itself41. In Aga Mohamad Jaffer
Bindanim v. Koolsoom Beebee & Ors42the Court held that it would be wrong for the Court on
37
Wael B. Hallaq, The Formation of Islamic Law (Formation of the Classical Islamic World, 27), Ashgate
Publishing, 259-260, (January 2004).
38
Ibid.
39
Bernard G. Weiss, Search for God's Law: Islamic Jurisprudence in the Writings of Sayf Al Din Al Amidi,
University of Utah Press, U.S., p. 181 (Dec 1992).
40
Kiyas in HAR Gibb and JH Kramers (eds), Shorter Encyclopaedia of Islam (Ithaca, NY, Cornell University
Press, 1953) 267.
41
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, AIR 1954 SC 282.
42
(1898) ILR 25 Cal. 9.

a point of this kind to attempt to put their own construction on the Koran in opposition to the
express ruling of commentators of such great antiquity and high authority43. Moreover, new
rules of law are not to be introduced because they seem to lawyers of the present day to
follow logically from ancient texts however authoritative, when the ancient doctors of the law
have not themselves drawn those conclusions44.
D. UNIFORM CIVIL CODE UNDER ARTICLE 44 IS ONLY A DIRECTIVE PRINCIPLE OF
STATE POLICY AND IS NOT ENFORCEABLE.

It is humbly submitted by the Petitioner that Art. 44 being only a DPSP is not enforceable.
This Art. recognizes the existence of various codes that are applicable to different religions
with reference to their personal laws and permits their continuance until the State is
successful in securing a Uniform Civil Code for all its citizens. It is submitted that the
framers of the Constitution were well aware of the struggle in enforcing a Uniform Civil
Code and therefore they thoughtfully refrained from interfering in the provisions of personal
laws thus, laying down only a Directive Principle. According to them-
By following their own personal laws, people of different caste and communities would not
be in conflict with each other.45 The Bengal Regulation IV of 1793 which accommodated
the personal laws of Hindus and Muslims in Section 15 provided that-
In suits regarding succession, inheritance, marriage and caste, and all religious usages and
institutions, the Mohamedan laws with respect to Mohamedans, and the Hindu laws with
regard to Hindus, are to be considered as the general rules by which the judges are to form
their decisions46.
In addition the Honble Court in Lily Thomas and Ors. v. Union of India47 held that the court
has no power to give directions for enforcement of Directive Principles of State Policy in Part
IV of the Constitution which included Art. 44.
Therefore, it is humbly submitted that the vision contemplated in Art 44. is a goal yet to be
achieved with respect to the viewpoints of different religions.
III. WHETHER THE SURROGACY ACT, 2016 IS CONSTITUTIONALLY

VALID.
43
Baker Ali Khan v. Anjuman Ara Begum, 30 I.A. 94.
44
Baqar Ali v. Anjuman (1902) 25 All. 236.
45
Constituent Assembly Debates HI, 549 (1948).
46
Moonshee Buzloor Ruheem v. Shumsoon-niss Begum (1867) 11 Moo. IA 551.
47
(2000) 6 SCC 224.

The petitioner contends that Section 377 Indian Penal Code and The Surrogacy Act, 2016
which puts a ban on homosexuals fails to adhere to the Golden Triangle test48 devised by
the Indian Supreme Court to inspect the constitutional validity of the laws enacted by the
Government. The aforementioned is discriminatory, arbitrary and unreasonable hence
violative of Right to Equality and Rule of Law enshrined under Art. 14[A], Right to Freedom
of trade and business under Article 19 [B] and Right to Life enshrined under Art. 21[C]. They
violate international obligations [D].Furthermore, Section 377 IPC is not in state interest [E]
and it causes health impediments [F].
A. ACTION OF THE STATE VIOLATES THE RIGHT TO EQUALITY.
Though a particular right is itself not violated by a State Act it may be denied to an individual
if he is denied equal enjoyment of the right on account of any distinction49 which is not
otherwise justifiable. That would be a violation of the Right to Equality before the law 50.
Thus, it is humbly submitted by the Petitioner that the ambit of Article 14 also covers
homosexuals and the Act is discriminatory as oppressive to minority in community[1],
arbitrary and unreasonable [2] and it discriminates on the basis of sex which violates article
15 [3].
1. Section 377 IPC and The Surrogacy Act, 2016 are oppressive to minority in
community.
It is submitted that Section 377 IPC is based upon traditional Judeo-Christian moral and
ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of
procreation only51. Any non-procreative sexual activity is thus viewed as being "against the
order of nature". The legislation criminalizing consensual sex among adults is outdated and
has no place in the society. Sec 377 IPC is a weapon for abuse by the police, for extortion,
harassment and to perpetuate negative and discriminatory beliefs towards same-sex
relations and sexuality minorities.
Principle 2(b) of the YOGYAKARTA PRINCIPLES52 states that States shall repeal
criminal and other legal provisions that prohibit or are, in effect, employed to prohibit
consensual sexual activity among people of the same sex who are over the age of consent,
48
Minerva Mills Ltd. & Ors v. Union Of India & Ors, AIR 1980 SC 1789.
49
Belgian Linguistic case, (1968) 11 Y.B.E.C.H.R 832 (N.33-34).
50
Mohini v. State of Karnataka, AIR 1992 SC 1858.
51
Robert Aldrich, Gay and Lesbian History, in Gay Life and Culture: A World History, 11 (New York:
Universe Publishing, 2006).
52
International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of
international human rights law in relation to sexual orientation and gender identity, March 2007.

and ensure that an equal age of consent applies to both same-sex and different sex sexual
activity.
Moreover, it says that everyone has the right to found a family, regardless of sexual
orientation or gender identity. Families exist in diverse forms. No family may be subjected to
discrimination on the basis of the sexual orientation or gender identity of any of its members.
States shall take all necessary legislative, administrative and other measures to ensure the
right to found a family, including through access to adoption or assisted procreation
(including donor insemination), without discrimination on the basis of sexual orientation or
gender identity.
Therefore, it is humbly submitted that the given Act discriminates with Abbey and Aldo.
2. A rule whose ingredients are vague in nature is arbitrary and unreasonable.
Right to equality not only means right to be not discriminated but also protection against
arbitrary or irrational act of the State.53 Art. 14 lays down that no person shall be denied, by
the state, equality before the law or the equal protection of the laws within its territory.
Article 14 strikes at arbitrariness and unreasonable actions of the State, which are
antithetical to the rule of equality.54 Arbitrary action is described as one that is irrational
and not based on sound reason or as one that is unreasonable.55 Wherever we find
arbitrariness or unreasonableness there is a denial of rule of law.56 Rule of law requires that
no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the
object is the securing of paramount exigencies of law and order57.
The Petitioner submits that the nature of the provision of Section 377 Indian Penal Code and
its purpose is to criminalise private conduct of consenting adults which causes no harm to
anyone else. It has no other purpose than to criminalise conduct which fails to conform to the
moral or religious views of a section of society. The discrimination severely affects the rights
and interests of homosexuals and deeply impairs their dignity.
The Petitioner also submits that the Surrogacy Act, 2016 passed by the government is
arbitrary since it classifies people into groups and bans surrogacy to certain such groups when
surrogacy in India is legitimate. Since the ban imposed is one which is discriminatory in
nature with respect to denying surrogacy to homosexuals and live-in couples, the guidelines
53
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.
54
Bachan Singh, Sher Singh And Anr. v. State Of Punjab And Ors, AIR 1982 SC 1325.
55
Om kumar v. Union Of India , AIR 2000 SC 3689.
56
Supra note 7.
57
Rubinder Singh v.Union of India, AIR 1983 SC 65.

provided in the Act are not guided by logic or reason and there is merely class legislation
done by the State.
It is submitted that for upholding the classification under Article 14 twin test must be
satisfied, (a) every classification must be founded on intelligible differentia (b) such
classification or differentia must have a relation or nexus to the object sought to be achieved
thereby58.
a) Classification must be founded on an intelligible differentia.
Intelligible Differentia means a factor that distinguishes a class from another which is capable
of being understood59.It is submitted that Section 377 IPC creates classification between
persons indulged in proactive and non-proactive sexual acts which are unintelligible as it
creates a class of vulnerable people continually victimized and directly affected by the
provision.
In Romer v. Evans60, the US Supreme Court concluded that the provision which named as a
solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation,
conduct, practices or relationships" and deprived them of protection under the state anti-
discrimination laws was "born of animosity towards the class of persons affected" and further
that it had no rational relation to a legitimate governmental purpose.
The Petitioner humbly submits that the classification enabled by the Act is based upon no
reasonable ground since it creates a class for homosexuals merely on the differentiation of
sex which is not capable of being understood. Such class legislation is hostile, discriminatory
and contra Article 14 of the Constitution. By criminalising sexual acts and assisted
procreation engaged in by homosexual men, they are denied this fundamental human
experience while the same is allowed to heterosexuals. Thus, section 377 exposes Abbey and
Aldo as homosexual persons to disproportionate risk of prosecution and harassment.
The Act discriminates with Abbey and Aldo, both Christians as it puts a ban on a mode of
parenthood. Moreover, there is no specific statute enabling or regulating adoption among
Christians in India. Therefore, the ban on surrogacy to Abbey and Aldo restricts them to start
a family unlike others which is undemocratic and regressive.
58
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538.
59
2, Ramanatha Aiyer , Advanced law Lexicon, 2391 (3 rd Edn. 2005).
60
517 U.S. 620 (1996).

b) Classification or differentia must have reasonable nexus to the object

sought to be achieved
In considering reasonableness from the point of view of Article 14, the Court has also to
consider the objective for such classification. If the objective be illogical, unfair and unjust,
necessarily the classification will have to be held as unreasonable.61
The petitioner humbly submits that the objective of penalizing unnatural sex under Article
377 IPC has no rational nexus to the classification created between procreative and non-
procreative sexual acts.
As held in Anuj Garg v. Hotel Association of India,62 if a law discriminates on any of the
prohibited grounds, it needs to be tested not merely against "reasonableness" under Article 14
but be subject to "strict scrutiny". The impugned provision in Section 377 IPC criminalises
the acts of homosexuals. It disproportionately impacts them solely on the basis of their sexual
orientation. The provision runs counter to the constitutional values and the notion of human
dignity which is considered to be the cornerstone of our Constitution.
In the instantaneous matter, the Intelligible Differentia applied by the Government only
restrains homosexuals from family hood and has no nexus with the object sought of
monitoring commercial surrogacy in the country. The section 377 of the IPC and the
Surrogacy Act, 2016 suffer from the vice of unreasonable classification and are arbitrary in
the way they unfairly target the homosexuals or gay community. They are only stereotypical,
outdated and have no historical or logical rationale rendering it unreasonable and arbitrary.
3. Differentiation on the basis of sex violates Article 15
It is submitted that all human rights are universal, interdependent, indivisible and interrelated.
Sexual orientation and gender identity are integral to every persons dignity and humanity
and must not be the basis for discrimination or abuse. In Toonen v. Australia63 the Human
Rights Committee, while holding that certain provisions of the Tasmanian Criminal Code
which criminalise various forms of sexual conduct between men violated the ICCPR,
observed that the reference to 'sex' in Article 2, paragraphs 1 and 26 (of the ICCPR) is to be
taken as including 'sexual orientation'.
United Nations has been instrumental in advocating the protection and promotion of rights of
sexual minorities. The Universal Declaration of Human Rights, 194864 and The International
61
Deepak Sibal v. Punjab University, AIR1989 SC 903.
62
AIR 2008 SC 663.
63
CCPR/C/WG/44/D/488/1992.
64
Universal Declaration of Human Rights, Article 16(1), G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948).

Covenant on Civil and Political Rights, 196665 (ICCPR) recognize that every human being
has the inherent right to live and this right shall be protected by law and that no one shall be
arbitrarily denied of that right and that no one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation since everyone has the right to protection of law against such
interference or attacks.66
The impugned provision in Section 377 IPC criminalises the acts of it disproportionately
impacts them solely on the basis of their sexual orientation. The provision runs counter to the
constitutional values and the notion of human dignity which is considered to be the
cornerstone of our Constitution. Section 377 violates Article 15 by discriminating on the
ground of sexual orientation as although facially neutral it treats homosexual men unequally
compared to heterosexuals and imposes an unequal burden on them.
B. BAN ON COMMERCIAL SURROGACY AND HOMOSEXUALITY VIOLATES ARTICLE 19.
Article 19(1)(g) guarantees a broad and general right which is available to every citizen to do
any kind of work, according to his choice.67 The Petitioner submits that the ban on
commercial surrogacy infringes the guarantee of Article 19 as it interferes with the
fundamental right of numerous surrogates as well as surrogacy clinics in the country to carry
on the trade or profession of their choice. It is further submitted that such a blanket ban on
commercial surrogacy cannot be justified as a reasonable restriction since it jeopardizes the
interests of multiple stakeholders in a multi-million industry. These women do not feel
exploited but report positive feelings about their experiences.68 Thus surrogacy does not
exploit women, but actually provides them with a unique employment opportunity and a
chance to earn money to supplement their regular incomes.69
Also, Section 377 IPC creates structural impediments to the exercise of freedom of speech
and expression and other freedoms under Article 19 by homosexuals or gays and is not
protected by any of the restrictions. Prohibition against homosexuality in Section 377 IPC
curtails the basic freedoms guaranteed under Article 19 (1)(a) (b) (c) & (d); in that, an
individual's ability to make personal statement about one's sexual preferences, right of
65
International Covenant on Civil and Political Rights, Article 16, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6
I.L.M. 368 (1967), 999 U.N.T.S. 171.
66
National Legal Services.Authority v. Union Of India & Ors, AIR 2014 SC 1863. See Also Ibid ICCPR, Article
17.
67
Fertiliser Corpn. v. Union of India, AIR 1981 CSC 344.
68
Abigail Lauren Perdue, For Love or Money: An Analysis of the Contractual Regulation of Reproductive
Surrogacy The Journal of Contemporary Health, Law and Policy 286 (2011).
69
Jennifer L. Watson, Growing a Baby for Sale or Merely Renting a Womb: Should Surrogate Mother be
Compensated for their Services? Whittier Journal of Child and Family Advocacy 545 (2007).

association/assembly and right to move freely so as to engage in homosexual conduct are

restricted and curtailed.
C. BAN ON COMMERCIAL SURROGACY VIOLATES RIGHT TO LIFE UNDER ART. 21
Right to life enshrined in Art. 21 of the Constitution means something more than survival or
animal existence.70 It would include right to live with human dignity.71 It would include all
those aspects of life which go to make a mans life meaningful, complete and worth living.72
If any statutory provision runs counter to such a right, it must be held to be unconstitutional
and ultra vires the part III of the constitution.73 The right to life includes the right to live with
human dignity and persons and includes expressing oneself in diverse forms, freely moving
about and mixing and comingling with fellow human beings. Recognition of ones gender
identity lies at the heart of the fundamental right to dignity.74 In Anuj Garg v. Hotel
Association of India75, the Court held that personal autonomy includes both the negative right
of not to be subject to interference by others and the positive right of individuals to make
decisions about their life, to express themselves and to choose which activities to take part in.
Self determination of gender is an integral part of personal autonomy and self-expression and
falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of
India.
1. Right to life of an individual includes right to privacy inclusive of right to
family formation" and right to reproductive autonomy
Right to family formation is a facet of right to life as held by the Supreme Court of India in
the case of R. Rajagopal v. State of T.N76. It was further held that It is a right of a citizen to
safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-
bearing and education among other matters and right to be free from unnecessary , arbitrary
state interference in the same.
Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of
privacy without arbitrary or unlawful interference, including with regard to their family,
home or correspondence as well as to protection from unlawful attacks on their honour and
70
State of Maharashtra v Chandrabhan, AIR 1983 SC 803; Noise Pollution v. In re, AIR 2005 SC 3136.
71
Francis Coralie Mullin v. Union Territory of India, AIR 1981 SC 74; Olga Tellis v. Bombay Corpn., AIR
1986 SC 180 ; D.T.C. v. Mazdoor Congress Union D.T.C., AIR 1991 SC 101;Consumer Education &
Research Centre v. Union of India(1995) 3 SCC 42.
72
Bd of. Trustee of the port of Bombay v. Nandakarni Dilip Kumar Raghavendra , AIR 1983 SC 109.
73
Confederation of Ex Serviceman Ass. v. Union of India ,AIR 2006 SC 2945.
74
Coralie Mullin v. Administrator,AIR 1981 SC 746.
75
Anuj Garg v. Hotel Association of India (2008) 3 SCC 1.
76
AIR 1995 SC 264.

reputation.77 The privacy recognizes 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 one gives expression to one's
sexuality is at the core of this area of private intimacy. If, in expressing one's sexuality, one
acts consensually and without harming the other, invasion of that precinct will be a breach
of privacy.78Section 377 of the IPC which criminalizes carnal intercourse and homosexuality
infringes the privacy of the Petitioners as both the petitioners are acting consensually without
harming the society.
Section 377 of the IPC which criminalizes carnal intercourse and homosexuality infringes the
privacy of the Petitioners as both the petitioners are acting consensually without harming the
society. The right of reproductive autonomy or procreative choice of an individual was held
by the Honble Court to be an aspect of his right to privacy79 which is inherently violated by
the impugned Surrogacy Act, 2016.
It is humbly submitted by the Petitioner that the guidelines as given in the Act interfere with
the Right to privacy of Abbey and Aldo, thus interfering with their right of parenthood as
well as that of reproductive autonomy.
Homosexuality is largely genetic in origin and it also states further that individuals with
homosexual genes will feel less inclined to behave heterosexually and will thus reproduce
less frequently80. Irregular levels of sex hormones during the development of the child in the
womb have also been cited as an influence81. The Petitioner submits that being born as they
are the ban on surrogacy curtails the right of family formation of all homosexuals thus,
violating Article 21. Furthermore, the Act shows a clear contradiction with the decision of the
Honble Court in Indra Sarma v. V.K.V.Sarma wherein it was held that domestic relationship
between same sex partners can also be considered as a live-in relationship and be proved in
Court. Therefore, The Surrogacy Act seizes the right to family formation of Abbey and Also
in spite of the granting of legal recognition by the Court.
77
International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of
international human rights law in relation to sexual orientation and gender identity, March 2007.
78
The National Coalition for Gay and Lesbian Equality v. The Minister of Justic, [1999] ZACC 17.
79
B. K. Parthasarthi v. Government of Andhra Pradesh AIR 2000 AP 156; Govind v. State of M.P. (1975) 2
SCC 148.
80
DeanHamer and P. Copeland The Science Of Desire: The Search For The Gay Gene And The Biology Of
Behavior (Simon and Schuster, New York, 1994).
81
Lane Tim Dean, Homosexuality And Psychoanalysis (The University of Chicago Press, Chicago, 2001).

2. Right of Homosexuals to undergo surrogacy

It is submitted that in several cases of foreign legal jurisdiction, homosexuals have been
granted the right to commission surrogacy and their parentage has been legally recognized 82.
In the Matter of Jacob,83 as well as in H v S (Surrogacy Agreement),84the Court was obliged
to allow parentage to a homosexual couple keeping in mind the best interest of the child.
Moreover, the Petitioner submits that the relationship accruing with respect to a child in a
surrogacy arrangement is governed by the terms of the contract entered into by the parties
and accordingly, a surrogate is not considered as the legal mother. As per ICMR Guidelines
2005, a surrogate mother cannot be genetically related to the child. A child born through
surrogacy shall be presumed to be the legitimate child of the intended parents. (surrogacy
laws India) Also Guidelines 3.10.1 and 3.16.1 make it very much clear that the intended
parents only would be the legal parents of the child.
In light of the above it is humbly submitted that the instantaneous Act impinges upon some of
the most basic necessities of life that the Constitution of India as well as several international
conventions guarantee to each human being irrespective of caste, creed, race or sex.
As a principle of law, courts cannot turn a blind eye towards the factual realities of the
society. The Judiciary has already recognized surrogacy being a factual reality. Upholding its
validity would only reflect maintaining values of the stone-age which would never allow
development of the State. With advancement of reproductive science, now, on occasions, the
bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to
some other soil to grow on. Now, it is Laws turn to appreciate the dichotomy of divine duty,
the split motherhood85.
D. THE IMPUGNED ACT VIOLATES VARIOUS INTERNATIONAL OBLIGATIONS
It is submitted that The Surrogacy Act, 2016 contravenes several safeguards to human life,
health and dignity enshrined in various international covenants ratified by India.
The Act interferes with the reproductive rights of individuals and infringes the right to found
a family enshrined in Article 16(1) of the Universal Declaration of Human Rights along with
Article 12 which prohibits unreasonable interference with privacy, family, home,
correspondence, honour or reputation86.
82
Elisa B. v. Superior Court, 6(2005) 37 C.4th 108, 33 C.R.3d 46, 117 P.3d 660.
83
86 NY2d 651 (1995).
84
[2015] EWFC 36.
85
P. Geetha v. The Kerala Livestock Development Board, 2015 SCC Online Ker 71.
86
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948)

UN Special Rapporteur on the Right to Health highlights the need and importance of
applying the principle of the interdependence and indivisibility of human rights to groups
including lesbian, gay, bisexual and transgender persons. International Covenant on
Economic, Social and Cultural Rights 1966, (ICCPR) in Article 2(2) refrains members from
discrimination on the basis of sex in enunciating rights given under the Covenant87 and in
Article 17 prohibits subjection to arbitrary or unlawful interference with his privacy, family,
home, correspondence, honour and reputation. International Conference on Population and
Development (ICPD) Cairo, 1994 also guarantees reproductive freedom. The European
Convention on Human Rights also protects the family life and privacy of an individual
irrespective of sex.
E. SECTION 377 OF IPC IS NOT IN STATE INTEREST
As held in Gobind v. State of M.P.88 if the court does find that a claimed right is entitled to
protection as a fundamental privacy right, the law infringing it must satisfy the compelling
state interest test. While it could be "a compelling state interest" to regulate by law, the area
for the protection of children and others incapable of giving a valid consent or the area of
non-consensual sex, enforcement of public morality does not amount to a "compelling state
interest" to justify invasion of the zone of privacy of adult homosexuals engaged in
consensual sex in private without intending to cause harm to each other or others. The
expression of sexuality requires a partner, real or imagined. It is not for the state to choose or
to arrange the choice of partner, but for the partners to choose themselves.89
Section 377 of the IPC infringes with the privacy by criminalizing carnal intercourse as their
sexual orientation is their private affair. It also damages their dignity by not recognizing the
homosexual couples and putting a ban on them from availing surrogacy by enacting the
Surrogacy Act, 2016.
F. SECTION 377 PREVENTS HEALTH IMPEDIMENTS
It is submitted that Right to health is an inherent part of the right to life under Article 21.
ICESCR in its Article 12 requires states to take measures to protect and fulfill the health of
all persons.90 Section 377 thwarts health services by preventing collection of HIV data,
impeding dissemination of information, forcing harassment, threats and closure upon
organisations who work with MSM, preventing supply of condoms as it is seen as aiding an
87
International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368
(1967), 999 U.N.T.S. 171.
88
Gobind v. State of M.P 1975 Cri.LJ 1111.
89
The National Coalition for Gay and Lesbian Equality v. The Minister of Justice [1999] ZACC 17.
90
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6
I.L.M. 360 (1967), 993 U.N.T.S. 3.

offence; limits access to health services, driving the community underground; prevents
disclosure of symptoms; increases sexual violence and harassment against the community;
and creates an absence of safe spaces leading to risky sex.
In Toonen v. Australia91, the Human Rights Committee noted that the criminalization of
homosexual practices cannot be considered a reasonable means or proportionate measure to
achieve the aim of preventing the spread of AIDS/HIV.
It is submitted that enforcement of Section 377 IPC renders risky sexual practices to go
unnoticed and unaddressed. The Law Commission has recommended deletion of Section 377
IPC, though in its earlier reports it had recommended the retention of the provision. In the
172nd report, the Law Commission of India, focused on the need to review the sexual
offences laws in the light of increased incidents of custodial rape and crime of sexual abuse
against youngsters, and inter alia, recommended deleting the Section 377 IPC by effecting the
recommended amendments in Sections 375 to 376E of IPC.
91
CCPR/C/WG/44/D/488/1992.

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited,
it is humbly requested that this Honble Court may be pleased to adjudge and declare:
1. That the SLP is maintainable under Article 136 of the Constitution of India, 1950.
2. That the implementation of Uniform Civil Code violates Article 25 and 26

enshrined under Part III of the Constitution of India, 1950.
3. That Section 377, IPC and the Surrogacy Act, 2016 areconstitutionally invalid as
it violates the fundamental rights of the homosexuals.
And pass any such order, writ or direction as the Honourable Court deems fit and
proper, for this the Appellants shall duty bound pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSEL FOR THE PETITIONERS

Memorial Petitioners

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Memorial Petitioners

Hochgeladen von

Copyright:

Verfügbare Formate

2nd AMITY NATIONAL MOOT COURT COMPETITION

TEAM CODE: M133P

2ND AMITY NATIONAL MOOT COURT COMPETITION, 2017

IN THE HON'BLE SUPREME COURT

OF THE DEMOCRATIC REPUBLIC OF INDICA

SPECIAL LEAVE PETITION NO.****/2017, SPECIAL LEAVE PETITION NO.****/2017,

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDICA, 1950

CASE CONCERNING IMPLEMENTATION OF UNIFORM CIVIL CODE, CONSTITUTIONAL

IN THE CLUBBED MATTERS OF

MEMORIAL ON BEHALF OF PETITIONERS

-MEMORIAL ON BEHALF OF PETITIONERS- i

LIST OF ABBREVIATIONS ................................................................................................ V

INDEX OF AUTHORITIES ................................................................................................ VI

STATEMENT OF JURISDICTION ...................................................................................... XI

STATEMENT OF FACTS ................................................................................................. XII

STATEMENT OF ISSUES ................................................ ERROR! BOOKMARK NOT DEFINED .

SUMMARY OF ARGUMENTS ......................................................................................... XIV

ARGUMENTS ADVANCED ................................................................................................. 1

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE

A. THE PETITIONER H AS LOCUS STANDI TO APPROACH THE H ONOURABLE

B. JURISDICTION OF SUPREME COURT UNDER ARTICLE 136 CAN ALWAYS BE

1. The Matter Involves Question Of Law Of General Public Importance And

2. The Matter Involves Substantial Question Of Law And Hence Entitled To Be

II. WHETHER THE IMPLEMENTATION OF UNIFORM CIVIL CODE

A. UNIFORM CIVIL CODE IS VIOLATIVE OF ARTICLES 25, 26, 29 AND S ECULARISM

-MEMORIAL ON BEHALF OF PETITIONERS- ii

2. Uniform Civil Code Violates Secularism Which Forms A Part of Basic

B. PERSONAL LAWS CAN NEITHER BE CHALLENGED AS VIOLATIVE OF

FUNDAMENTAL RIGHTS NOR CAN IT BE RE -WRITTEN IN THE NAME OF SOCIAL NORMS . 6

1. Personal laws cannot be challenged as being violative of Part III of the

2. Personal laws cannot be re-written in the name of Social Reform ................... 7

C. PRACTICES UNDER MUSLIM PERSONAL LAW ARE BASED ON HOLY SCRIPTURES

1. Implementation of Uniform Civil Code is a matter of legislative policy. .......... 7

2. Practices in Muslim Personal Law are based on holy scriptures- Al Quran

D. UNIFORM CIVIL CODE UNDER ARTICLE 44 IS ONLY A DIRECTIVE PRINCIPLE OF

STATE POLICY AND IS NOT ENFORCEABLE. ..................................................................... 10

III. WHETHER THE SURROGACY ACT, 2016 IS CONSTITUTIONALLY

A. ACTION OF THE STATE VIOLATES THE RIGHT TO EQUALITY................................. 11

2. A rule whose ingredients are vague in nature is arbitrary and unreasonable.

a) Classification must be founded on an intelligible differentia. .................. 13

-MEMORIAL ON BEHALF OF PETITIONERS- iii

b) Classification or differentia must have reasonable nexus to the object

3. Differentiation on the basis of sex violates Article 15 ..................................... 14

B. BAN ON COMMERCIAL SURROGACY AND HOMOSEXUALITY VIOLATES ARTICLE

C. BAN ON COMMERCIAL SURROGACY VIOLATES RIGHT TO LIFE UNDER ART. 21.16

1. Right to life of an individual includes right to privacy inclusive of right to

2. Right of Homosexuals to undergo surrogacy .................................................. 18

D. THE IMPUGNED ACT VIOLATES VARIOUS INTERNATIONAL OBLIGATIONS .......... 18

E. SECTION 377 OF IPC IS NOT IN STATE INTEREST ............................................... 19

F. SECTION 377 PREVENTS HEALTH IMPEDIMENTS ................................................. 19

-MEMORIAL ON BEHALF OF PETITIONERS- iv

AIMPLB All India Muslim Personal Law Board

AIR All India Reporter

A.P Andhra Pradesh

ICCPR International Covenant on Civil and Political Rights

IPC Indian Penal Code

SCC Supreme Court Cases

SLP Special Leave Petition

U.P. Uttar Pradesh

W.B. West Bengal

-MEMORIAL ON BEHALF OF PETITIONERS- v

Anuj Garg v. Hotel Asscociation of India (2008) 3 SCC 1 ...................................................... 16

Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 ........................................................ 17

SPECIAL LEAVE PETITION NO./2017, SPECIAL LEAVE PETITION NO./2017,