TC – 12

BANGALORE UNIVERSITY
UNIVERSITY LAW COLLEGE
XXV ALL INDIA MOOT COURT COMPETITION, 2021

MEMORIAL SUBMITTED TO,

THE HON’BLE SUPREME COURT OF JIMLAND

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

JIMLAND

ZARINA AND ORS…………………………………...……………………...PETITIONER

v.
UNION OF JIMLAND AND ORS…………………………………………RESPONDENT

MEMORIAL FILED AND APPEARING ON BEHALF OF RESPONDENT.

 TABLE OF CONTENTS

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

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

STATEMENT OF JURISDICTION .................................................................................. 8

STATEMENT OF FACTS ................................................................................................. 9

ISSUES FOR CONSIDERATION ................................................................................... 10

SUMMARY OF ARGUMENTS ....................................................................................... 11

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

ISSUE-I: THAT THE ORDINANCE TITLED ‘THE UNIFORM MARRIAGE REFORMS

(AMENDMENT) ORDINANCE 2021’ IS VALID IN THE LIGHT OF ARTICLE 14, 19, 21 AND
25 OF THE CONSTITUTION OF JIMLAND. ........................................................................ 13

[1.1]THAT THE ORDINANCE DOES NOT VIOLATE ARTICLE 15 OF THE CONSTITUTION. ... 13

[1.2]THAT THE IMPUGNED ORDINANCE IS NOT VIOLATIVE OF ARTICLE 25. ................... 14

[1.3] THAT THE ORDINANCE IS NOT VIOLATIVE OF THE GOLDEN TRIANGLE OF THE
CONSTITUTION.............................................................................................................. 15

[1.4] POLICE HAS THE POWER TO ARREST UNDER SUSPICION OF CONTRAVENTION. ...... 17

ISSUE-II: THAT RIGHT TO LIFE DOES NOT INCLUDE THE RIGHT TO MARRIAGE TO A
PERSON OF SAME-SEX OR RELIGION. ............................................................................ 18

[2.1] THAT ARTICLE 21 IS SUBJECT TO PROCEDURE ESTABLISHED BY LAW. .................. 18

[2.2] THAT STATE HAS A LEGITIMATE INTEREST AND IT IS A MATTER OF PUBLIC POLICY.
.................................................................................................................................... 21

[2.3] NO FUNDAMENTAL RIGHT CAN BE ABSOLUTE. ..................................................... 22

[2.4] THE RIGHT TO LIFE DOES NOT GIVE THE ABSOLUTE RIGHT TO MARRY A PERSON
OF ANY RELIGION. ....................................................................................................... 23

ISSUE-III: WHETHER COURT OF LAWS IS PERMITTED TO ISSUE A RESTRAINING ORDER

AGAINST THE PRESS IN THE LIGHT OF ARTICLE 19 OF THE CONSTITUTION. ............... 24

2
 [3.1] THAT THERE OUGHT TO BE DISTINCTION BETWEEN BLANKET AND PARTIAL GAG
ORDER.......................................................................................................................... 25

[3.2] CITIZENRY HAS A RIGHT TO KNOW AS THE CASE INVOLVES LARGER INTEREST OF
THE SOCIETY. ............................................................................................................... 26

[3.3] THERE IS NO IMMINENT DANGER TO THE ADMINISTRATION OF JUSTICE AND FREE

TRIAL. .......................................................................................................................... 27

ISSUE-IV: WHETHER THERE IS ANY PROHIBITION IN ANY LAW FOR PEOPLE TO COME
TOGETHER AND PRACTICE, PROFESS AND PROPAGATE A NEW RELIGION OF THEIR
CHOICE. .......................................................................................................................... 28

[4.1] ARTICLE 25 IMPOSES POSITIVE OBLIGATION UPON THE STATE TO MAINTAIN THE
PUBLIC ORDER. ............................................................................................................ 28

[4.2] CONVERSION BY ALLUREMENT IS NOT PROTECTED UNDER ARTICLE 25 OF THE

CONSTITUTION.............................................................................................................. 30

PRAYER ........................................................................................................................... 32

3
 LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

AIR All India Reporter

Art Article

Civ Civil

Cri Criminal

Const Constitution

Del Delhi

Hon’ble Honourable

Mah Maharashtra

MP Madhya Pradesh

SCC Supreme Court Cases

SC Supreme Court

SCR Supreme Court Reporter

¶ Paragraph No.

§ Section

& And

4
 INDEX OF AUTHORITIESError! Bookmark not defined.

BOOKS

P. K. Tripathi, Spotlights on Constitutional Interpretation 278 (1978). _________________ 27

R. Dworkin, Sovereign Virtue (2002). __________________________________________ 16

V. N. Shukla, Constitution of India 222 (2020). ___________________________________ 20

STATUTES

Criminal Procedure Code § 2, § 1, (1973). _______________________________________ 19

Criminal Procedure Code § 327, (1973). ________________________________________ 28

Criminal Procedure Code § 41, (1973). _________________________________________ 18

Criminal Procedure Code § 41-A, (1973). _______________________________________ 18

Criminal Procedure Code § 41-B, (1973). _______________________________________ 19

M.P. Dharma Swatantrya Adhiniyam §3, (1968). _________________________________ 15

Special Marriage Act, (1955). _________________________________________________ 26

SUPREME COURT CASES

A. S. Narayana Deekshitulu v. State of A. P. and others, (1996) 9 SCC 548. ____________ 28

Adi Saiva Sivachariyargal v. Govt. Of Tamil Nadu & Anr., AIR 2016 SC 209. __________ 31

Arun Ghosh v. State of West Bengal, 1966 Cri LJ 608. _____________________________ 17

Asha Ranjan v. State of Bihar and Ors., (2017) 4 SCC 397. _________________________ 32

Collector of Customs v. Digvijaya Singhji Spinning & Weaving Mill, AIR 1961 SC 1549. _ 24

Directorate of Film Festivals & Ors. v. Gaurav Ashwin Jain & Ors., (2007) 4 SCC 737. __ 23

Goolrokh M. Gupta v. BurjorPardiwala Dead and Ors., MANU/SC/1866/2017. ________ 25

5
Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755. ________________________________ 20

Joseph Shine v. Union of India, AIR 2018 SC 1676. ____________________________ 21, 22

Justice K. S. Puttaswamy (Retd.) v. Union of India and Ors., (2017) 10 SCC 1. __________ 16

M/s. Laxmi Khandsari and Ors. v. State of U. P. and Ors., (1981) 2 SCC 600. _______ 20, 22

Maneka Gandhi v. Union of India, AIR 1978 SC 597.________________________ 19, 20, 25

Om Kumar and Ors. v. Union of India, (2001) 2 SCC 386. __________________________ 27

Ramchand Jagdish Chand v. Union of India, AIR 1963 SC 563. _____________________ 17

Ramjilal Modi v. State of U. P., AIR 1957 SC 620. _____________________________ 17, 30

Re: Harijai Singh & Anr. v. Re: Vijay Kumar, (1996) 6 SCC 466. ____________________ 27

Reliance Petrochemicals Ltd. v. Proprietors of Indian Express newspaper Bombay Pvt. Ltd.,
(1998) 4 SCC 592.________________________________________________________ 29

Rev Stanislaus v. State of Madhya Pradesh, (1977) 2 SCR 611. ___________________ 15, 31

S. P. Gupta v. Union of India, AIR 1982 SC 149. _________________________________ 26

Sahara India Real Estate Corp. Ltd. v. SEBI, (2012) 10 SCC 603. ____________________ 29

Sakal Paper Pvt. Ltd. v. Union of India, AIR 1962 SC 305. _________________________ 26

Sardar Syadna Taker Saifuddin Saheb v. The State of Bombay, (1962) 2 SCR 496. _______ 30

Selvi and Ors. v. State of Karnataka, AIR 2010 SC 1974. ___________________________ 19

State of A. P. and Ors. v. Mcdowell & Co. and Ors., (1996) 3 SCC 709. _______________ 23

Subramanian Swamy v. Director, Central Bureau of Investigation and Anr., (2014) 8 SCC
682. ___________________________________________________________________ 20

Supt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633. ____________________ 30

Tokugha Yepthomi v. Apollo Hospital Enterprises Ltd., MANU/SC/2214/1998. _________ 20

6
Union of India and Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96. ________________ 23

Yamanaji H. Jadhav v. Nirmala, (2000) 2 SCC 637. _______________________________ 25

CONSTITUTIONAL PROVISIONS

India Const. art. 15. _________________________________________________________ 14

India Const. art. 25. ______________________________________________________ 15, 16

MOOT PROPOSITION

Moot Proposition , ¶2. _______________________________________________________ 25

Moot Proposition, ¶ 7. _______________________________________________________ 16

Moot Proposition, ¶ 8. _______________________________________________________ 14

Moot Proposition, Annexure 1. ________________________________________________ 14

ONLINE MATERIALS

C. Powell, Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of
Marriage Equality, 84 Fordham Law Review (2015). ____________________________ 23

Isabel Farhi, When Silence Isn’t Golden: How Gag Orders Can Evade First Amendment
Protections, _____________________________________________________________ 27

Laurence Drew Borten, Sex, Procreation, and the State Interest in Marriage, 102 Columbia
Law Review 1089 (2002). __________________________________________________ 22

Maxine Eichner, Marriage and the Elephant: The Liberal Democratic State's Regulation of
Intimate Relationships Between Adults, 30 Harvard Journal of Law and Gender (2007)._ 21

Sean Macbride, 8 International Commission of Jurists, Journal of the International

Commission of Jurists, 132 (1967). __________________________________________ 28

OTHER JURISDICTIONS

Obergefell v. Hodges, 576 U. S. (2015). ______________________________________ 22, 23

7
 STATEMENT OF JURISDICTION

The petitioners has approached the Hon’ble Supreme Court of Jimland under Article 136 of
the Constitution of Jimland. The respondents submits to the same.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS

AND ARGUMENTS ON BEHALF OF THE RESPONDENT IN THE PRESENT
CASE.

8
 STATEMENT OF FACTS

 That Zarina and Cersei, students of United Law College, converted themselves unto
Samahsutra religion which permits satisfaction of carnal instincts amongst the same sex.

 That The said religion follows left-hand path to god with its members being discreet and
secretive akin to KKK and has existed in every continent for ages.

 That both the girls got married to each other under the rituals of the said religion.

 That they proclaimed their love and subsequent marriage on social media citing the
beginning of a new world order and calling other women/members of same-sex to join the
order of Samahsutra religion to have a privy and conducive relationship with the same-
sex.

 That the youth of the country being driven by the publications in the media started
converting themselves unto Samahsutra religion and sought to have sexual relationship
with persons belonging to the same sex as well as solemnized marriage in the same order
which no law recognised.

 That more people stated calling out the youth to join the new world order and a new
beginning of Jimland.

 That the President of Jimland, taking into consideration the massive ongoing agitation in
the country, issued an Ordinance.

 That the Ordinance was meant to clear the ambiguities of the law and further granted
powers to the police personnel to check that the law in question is not violated.

 That Zarina and Cersei moved a Writ Petition to the High Court of State of Mahakhanda
under Article 226 of the Constitution of Jimland, which at the point of the preliminary
hearingdismissed the petition. Aggrieved by it, they have approached this Hon’ble Court
via a Special Leave Petition (SLP) under Article 136 of the Constitution.

9
 ISSUES FOR CONSIDERATION

-ISSUE 1-

WHETHER THE ORDINANCE TITLED THE UNIFORM MARRIAGE REFORMS (AMENDMENT)

ORDINANCE 2021 IS VALID IN THE LIGHT OF ARTICLE 14, 19, 21, AND 25 OF THE
CONSTITUTION OF JIMLAND.

-ISSUE 2-

WHETHER RIGHT TO LIFE INCLUDES THE RIGHT TO GET MARRIED TO ANY PERSON
BELONGING TO ANY RELIGION OR SEX.

-ISSUE 3--

WHETHER THE COURT OF LAWS IS PERMITTED TO ISSUE A RESTRAINING ORDER AGAINST

THE PRESS IN THE LIGHT OF ARTICLE 19 OF THE CONSTITUTION.

-ISSUE 4-

WHETHER THERE IS ANY PROHIBITION IN ANY LAW FOR PEOPLE TO COME TOGETHER AND
PRACTICE, PROFESS AND PROPAGATE A NEW RELIGION OF THEIR CHOICE.

10
 SUMMARY OF ARGUMENTS

~ISSUE 1~

WHETHER THE ORDINANCE TITLED THE UNIFORM MARRIAGE REFORMS (AMENDMENT)

ORDINANCE 2021 IS VALID IN THE LIGHT OF ARTICLE 14, 19, 21, AND 25 OF THE
CONSTITUTION OF JIMLAND.

It is humbly submitted before this Hon’ble Court that the aforementioned Ordinance is
Constitutional and ought to be implemented in its full spirit because the Ordinance is not
violative of Article 15 of the Constitution as it is mere clarifies the amended legislation, it is
in accordance with the golden triangle of the Constitution and satisfies the test given therein
and it only discourages unlawful conversions, which is under the safeguards provided under
Article 25 of the Constitution. Other than that, the provision under sub-clause (ii) of clause 5
of the impugned Ordinance is valid subject to section 41 of the CRPC.

~ISSUE 2~

WHETHER RIGHT TO LIFE INCLUDES THE RIGHT TO GET MARRIED TO ANY PERSON
BELONGING TO ANY RELIGION OR SEX.

It is humbly submitted before this hon’ble Court that the Right to Life under Article 21 does
not include the right to get married to any person belonging to any sex or religion because,
Article 21 is subject to procedure established by law and it is fair, reasonable and has a
rational basis to the object sought to be achieved, moreover state has a legitimate interest in
granting such recognition and it is a matter of public policy, furthermore no fundamental
right can be absolute and the procedure established by law does not give absolute right to
marry any person of any sex.

~ISSUE 3~

WHETHER THE COURT OF LAWS IS PERMITTED TO ISSUE A RESTRAINING ORDER

AGAINST THE PRESS IN THE LIGHT OF ARTICLE 19 OF THE CONSTITUTION.

11
It is humbly submitted before this hon’ble Court that the Court of Laws can issue a
restraining order against the press but a distinction has to be drawn between blanket and
partial gag, in the light of Article 19 of the constitution because a blanket ban results into
choking of the free press and the right of a journalist to ensure an informed society.
Furthermore it is detrimental for the larger interest of the society as it infringes the Right to
Know of the society, court should adopt less invasive measure putting restrictions on the
media and that there is no imminent danger which would affect the administration of justice
and free trial.

~ISSUE 4~

WHETHER THERE IS ANY PROHIBITION IN ANY LAW FOR PEOPLE TO COME TOGETHER
AND PRACTICE, PROFESS AND PROPAGATE A NEW RELIGION OF THEIR CHOICE.

It is humbly submitted before this Hon’ble Court that although there is right given in the
constitution to come together and practice, profess and propagate a new religion of their
choice, however, reasonable restrictions can be imposed upon it on the ground of public
order, morality and health. Article 25 imposes a positive obligation upon the state to maintain
public order and second, the conversion in the present case is being done by allurement and
hence within the strictures of morality. Moreover there is need to have a balance between the
greater public good or social order between a person's right to choose a faith and the
reasonable restrictions imposed upon it.

12
 ARGUMENTS ADVANCED

ISSUE-I: THAT THE ORDINANCE TITLED ‘THE UNIFORM MARRIAGE REFORMS

(AMENDMENT) ORDINANCE 2021’ IS VALID IN THE LIGHT OF ARTICLE 14, 19, 21 AND 25
OF THE CONSTITUTION OF JIMLAND.

[¶I.1] It is humbly submitted before this Hon’ble Court that the aforementioned Ordinance is
Constitutional and ought to be implemented in its full spirit. The said contention is based on 4
grounds, namely, first, the Ordinance does not violate Article 15 of the Constitution, Second,
it does not violate the golden triangle of the Constitution and satisfies the test given therein,
Third, it is not violative of Article 25 of the Constitution and fourth, the provision under sub-
clause (ii) of clause 5 of the impugned Ordinance is valid subject to section 41 of the CRPC.
Hence, the Impugned legislation is Constitutional and does not violate any Constitutional
principles.

[1.1]THAT THE ORDINANCE DOES NOT VIOLATE ARTICLE 15 OF THE CONSTITUTION.

[¶I.2] It is imperative to mention here that the Ordinance while amending the Uniform
Marriage Act, 1955,1 does not violate Article 15 of the Constitution and merely clarify what
is already set in the impugned legislation.

[¶I.3] Article 15,2 read as, “Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth.”Now what Article 15 states is that there should not be any
discrimination on the basis of one’s sex. But it is pertinent to note that the impugned
Ordinance via Clause 33 is merely a clarificatory statement of what has already been stated in
the UMA. UMA accompanied with its complementary legislations and by giving it a
thorough reading, the intent behind the legislation is evident which is to recognize only
heterogeneous marriages which is also clear from the language prescribed in the legislation.

[¶I.4] Section 3,4 5(c)(iii),5 8,6 12,7 etc of UMA along with other complimentary legislations
prescribe a language which is heterogeneous in nature and only recognizes a marriage and

1
Moot Proposition,¶8.
2
India Const. art. 15.
3
Moot Proposition, Annexure 1.
4
Id.
5
Id.
6
Id.

13
related rights between a male and a female. The Ordinance merely clarifies and does not
intend to discriminate by not including marriages other than heterogeneous marriages as the
same is not recognised by the legislation. Therefore, the impugned Ordinance is not violative
of Article 15 of the Constitution.

[1.2]THAT THE IMPUGNED ORDINANCE IS NOT VIOLATIVE OF ARTICLE 25.

[¶I.5] It is pertinent to mention that the anti-conversion law intends to penalise only unlawful
conversions and does not discourage lawful conversion and hence does not violate right to
conscience and the right to freedom of religion under Article 25.8

[¶I.6] Supreme Court in the case of Rev Stanislaus,9 while testing the constitutionality of a
state anti-conversion law held in affirmative that:“What is penalised is conversion by force,
fraud or by allurement. The other element is that every person has a right to profess his own
religion and to act according to it. Any interference with that right of the other person by
resorting to conversion by force, fraud or allurement cannot, in our opinion, be said to
contravene Article 25(1) of the Constitution of India, as the Article guarantees religious
freedom subject to public health.”

[¶I.7] It ruled that, “As such, we do not find that the provisions of Sections 3, 4 and 5 of the
M.P. Dharma SwatantryaAdhiniyam 1968 are violative of Article 25(1) of the Constitution of
India, on the other hand it guarantees religious freedom to one and all including those who
might be amenable to conversion by force, fraud or allurement. As such, the Act, in our
opinion, guarantees equality of religious freedom to all, much less can it be said to encroach
upon the religious freedom of any particular individual”.

[¶I.8] Section 3,10 and 4,11 of the Madhya Pradesh Act prescribed a language similar to the
impugned Ordinance wherein section 3 penalised unlawful conversion whereas section 4
prescribed its punishment which was upheld by the apex court in aforementioned case. The
impugned Ordinance only penalises conversion by abetment or by force, or which is deceitful
or dubious in nature and does not discourage conversion done by fair means with bona fide

7
Id.
8
India Const. art. 25.
9
Rev Stanislaus v. State of Madhya Pradesh, (1977) 2 SCR 611.
10
M.P. Dharma SwatantryaAdhiniyam §3, (1968).
11
Id.

14
intention. Even though Article 25,12 provides an individual with the Right to freedom of
religion and conscience, there is a positive obligation upon the state,13 to protect the citizens
from any unfair practice including unlawful conversion in the name of marriage or vice
versa.Therefore, the impugned Ordinance is not violative of Article 25 and guarantees
freedom of conscience to all the citizens of the country alike.

[1.3] THAT THE ORDINANCE IS NOT VIOLATIVE OF THE GOLDEN TRIANGLE OF THE
CONSTITUTION

[¶I.9] It is relevant to state that the impugned Ordinance is not violative of Article 14, 19 and
21 of the Constitution and satisfies the test given therein. An invasion of life or personal
liberty must meet the three-fold requirement of

(i) legality, which postulates the existence of law;

(ii) need, defined in terms of a legitimate state aim; and
(iii) proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them. 14

The impugned Ordinance satisfies the given test.

[¶I.10] Firstly, the legality aspect is satisfied as the Ordinance was passed by following the
due process given. Secondly, there was a need of a uniform law against unlawful conversion
in the light of mass conversions,15 being undertaken in the country. The compelling state
interest behind the impugned Ordinance is to protect the gullible from being converted by
fraudulent means.

[¶I.11] Thirdly, there is a rational nexus between the object and the means adopted to achieve
it. The Ordinance by taking punitive action against anyone involved in such unlawful
activities would act as a deterrent in future for people intending to indulge in unlawful
conversions for marriage or vice-versa.Hence, the impugned Ordinance satisfies the test
given therein.

12
India Const. art. 25.
13
R. Dworkin, Sovereign Virtue (2002).
14
Justice K. S. Puttaswamy (Retd.) v. Union of India and Ors., (2017) 10 SCC 1.
15
Moot Proposition, ¶7.

15
[1.3.1] THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY.

[¶I.12] There is always a presumption in favour of constitutionality of an enactment, and the

burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles. The person, therefore, who pleads that Article 14 has been violated,
must make out that not only has he also been treated differently from others, but he has also
been treated differently from persons similarly circumstanced without any reasonable basis,
and such differential treatment has been unjustifiably made. 16

[¶I.13] In the present case, such claims would fail as the impugned Ordinance is religion-
neutral and does not favour a particular religion as prescribed in our Constitution upon the
touchstone of secularity which prescribes that the state does not recognize one single religion
and treats all alike. The Ordinance treats all religions equally and does not discriminate
against any religion or person and is a uniform law against unlawful conversion and does not
violate any constitutional principle.

[1.3.2] THAT THE ORDINANCE IS COVERED WITHIN THE EXCEPTION OF PUBLIC ORDER
UNDER ARTICLE 19(2).

[¶I.14] It cannot be predicted that freedom of religion can have no bearing whatsoever on the
maintenance of public order or that a law creating an offence relating to religion cannot under
any circumstances be said to have been enacted in the interest of public order. 17

[¶I.15] It has also been held that if a thing disturbs the current of the life of the community,
and does not merely affect an individual, it would amount to disturbance of the public
order.18Thus, if an attempt is made to raise communal passions, e.g. on the ground that
someone has been ''forcibly" converted to another religion, it would, in all probability, give
rise to an apprehension of a breach of the public order, affecting the community at large.19

[¶I.16] In order to maintain public order and to maintain peace and tranquillity which would
be disturbed by an act of unlawful conversion for marriage or vice-versa had to be prevented.
Even though the Constitution provides every individual Right to Freedom of speech and
expression including any other act associated with it which has a religious bearing too, but

16
Ramchand Jagdish Chand v. Union of India, AIR 1963 SC 563.
17
Ramjilal Modi v. State of U.P., AIR 1957 SC 620.
18
Arun Ghosh v. State of West Bengal, 1966 Cri LJ 608.
19
Id.

16
Religious freedom cannot be used as protection against acts inimical to the public order,
health and morality.

[¶I.17] Article 19(2) carves out exceptions wherein this freedom can be curtailed. The present
Ordinance promulgated under Entry 3 of List III (better known as the ‘Concurrent List’),
wherein both Parliament and State Legislature have powers to enact such laws for the reasons
related to maintenance of public order or maintenance of supplies or services essential to the
community is protected by the exception given under Article 19(2).Therefore, the impugned
Ordinance does not violate Article 19 and thereby, does not violate the golden triangle of the
Constitution and ought to be implemented in its full letter and spirit.

[1.4] POLICE HAS THE POWER TO ARREST UNDER SUSPICION OF CONTRAVENTION.

[¶I.18] It is pertinent to note that the power to arrest under presumption of contravention of
the provisions of the impugned Ordinance is valid and is subjected to section 41 and 41A of
CRPC, 1973.

[¶I.19] Section 41,20of CRPC reads as, “ When police may arrest without warrant - (1) Any
police officer may without an order from a Magistrate and without a warrant, arrest any
person- (a) who has been concerned in any cognizable offence, or against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned;

[¶I.20] Further, Section 41-A, 21 and 41-B,22 gives out the procedure to be followed in case
the arrest is done under the said provision which is similar to the provision given under the
impugned Legislation. Now what would come under the ambit of Cognizable offence is given
under part II of Schedule I,23 of CRPC wherein offences affect public tranquillity, as well as
offences related to religion, are cognizable offences and it comes within the ambit of the
legislature to decide what would be termed as cognizable offence as done in the present case.

[¶I.21] Hence, the provision giving power to the police personnel to arrest on presumption on
contravention subject to section 41 of CRPC is valid. Therefore, the sub-clause (ii) of clause
5 of the impugned Ordinance ought to be implemented.

20
Criminal Procedure Code § 41, (1973).
21
Criminal Procedure Code § 41-A, (1973).
22
Criminal Procedure Code § 41-B, (1973).
23
Criminal Procedure Code § 2, § 1, (1973).

17
ISSUE-II: THAT RIGHT TO LIFE DOES NOT INCLUDE THE RIGHT TO MARRIAGE TO A
PERSON OF SAME-SEX OR RELIGION.

[¶II.1] It is humbly submitted before this hon’ble Court that the Right to Life under 21 does
not include the right to get married to any person belonging to any sex or religion. The said
contention is put forth on four grounds. The said grounds are, first, That Article 21 is subject
to procedure established by law and it is fair, reasonable and has a rational basis to the object
sought to be achieved, second, state has a legitimate interest in granting such recognition and
it is a matter of public policy, third, no fundamental right can be absolute and fourth, the
Right to Life does not give absolute right to marry any person of any religion.

[2.1] THAT ARTICLE 21 IS SUBJECT TO PROCEDURE ESTABLISHED BY LAW.

[¶II.2] It is pertinent to note that under the current jurisprudence of Article 21, it is subject to
the procedure established by law which should be just, fair and reasonable, 24 as in the present
case wherein the procedure established by law cannot be expanded to include the
fundamental right for same-sex marriage to be recognised under the laws, which mandate the
contrary and no right can be granted in the absolute sense.

[¶II.3] It is evident that the notion of personal liberty does not grant rights in the absolute
sense and the validity of restrictions placed on the same needs to be evaluated based on
criteria such as `fairness, non-arbitrariness, and reasonableness'.25 The expression “procedure
established by law” means procedure laid down by statute or procedure prescribed by the law
of the state. 26

[¶II.4] The contention herein is whether Article 21 would include same-sex marriage. But
Article 21 is subject to the procedure established by law which here would be the legislation
related to marriage and other supplementary statutes which explicitly recognise the
heterosexual monogamous nature of marriage, i.e., a union of a Male and Female. In addition
to it, the Court’s precedents have repeatedly described marriage in ways that are consistent
with the aforementioned definition of marriage.

24
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
25
Selvi and Ors. v. State of Karnataka, AIR 2010 SC 1974.
26
V.N. Shukla, Constitution of India 222 (2020).

18
[¶II.5] It was held in the case of Indra Sarma,27 “Marriages in India take place either
following the personal Law of the Religion to which a party belongs or following the
provisions of the Special Marriage Act.”

[¶II.6] Marriage, as per the Common Law, constitutes a contract between a man and a
woman, in which the parties undertake to live together and support each other”. Marriage is
the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be a
mental, psychological and physical union.”28

[2.1.1] THAT THE PROCEDURE ESTABLISHED BY LAW IS FAIR, REASONABLE AND HAS A
RATIONAL BASIS TO THE OBJECT SOUGHT TO BE ACHIEVED.

[¶II.7] The law prescribing a procedure for deprivation of life and personal liberty in Article
21 could not be any sort of procedure, but it had to be one that was neither arbitrary nor
unfair or unreasonable.29 The Constitution permits the State to determine, by the process of
classification, what should be regarded as a class for purposes of legislation and in relation to
a law enacted on a particular subject.30 There is bound to be some degree of inequality when
there is segregation of one class from the other.31 However, such segregation must be rational
and not artificial or evasive.32

[¶II.8] In other words, the classification must not only be based on some qualities or
characteristics, which are to be found in all persons grouped together and not in others who
are left out, but those qualities or characteristics must have a reasonable relation to the object
of the legislation.33 Differentia which is the basis of classification must be sound and must
have a reasonable relation to the object of the legislation. 34 Such restrictions may be partial,
complete, permanent or temporary, but they must bear a close nexus with the object in the
interest of which they are imposed. 35

[¶II.9] In the present case, the objective sought to be achieved and the intent behind the
statutes is to regulate the social institution of marriage in a multi-cultural and multi-faith
society which sanctifies and terms marriage sacrosanct. When the state enacts and enforces
27
IndraSarma v. V.K.V. Sarma, (2013) 15 SCC 755.
28
TokughaYepthomi v. Apollo Hospital Enterprises Ltd., MANU/SC/2214/1998.
29
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
30
Subramanian Swamy v. Director, Central Bureau of Investigation and Anr., (2014) 8 SCC 682.
31
Id.
32
Id.
33
Id.
34
Id.
35
M/s. Laxmi Khandsari and Ors. v. State of U.P. and Ors., (1981) 2 SCC 600.

19
such legislation, it does so on the postulate that marriage as a social institution has a
significant bearing on the social fabric. 36 It is a complex institute with its own set of old age
rituals, customs and has its own set of rules, patterns, norms and expectations and thus
altering its definition may have unforeseeable social effects with far-reaching consequences
which would create havoc in the society. 37

[¶II.10] The qualities and characteristics which differentiate the two classes of people have a
reasonable relation to the object of the legislation which is to regulate the complex social
institution of marriage in the public interest and altering the definition of marriage is a radical
transformation of the structure of society and ought to be done by a democratic process.

[2.1.2] MARRIAGE IS A UNION OF A HUSBAND AND A WIFE.

[¶II.11] Marriage is often described as one of the basic civil rights of man/woman, which is
voluntarily undertaken by the parties in public in a formal way, and once concluded,
recognizes the parties as husband and wife. 38Three elements of common law marriage are (1)
agreement to be married (2) living together as husband and wife, (3) holding out to the public
that they are married.39

[¶II.12] It is implicit that our social ethos which embodies a family unit concept of a husband
and wife works on the notion of heterosexuality and altering its definition to include
homosexuals is not plausible as it is neither possible nor feasible to term one as ‘husband’
and the other as ‘wife’ in the context of legislative scheme of various statutes. Marriage is
simply a union of a man and a woman that is socially accepted,40 and regulated either by
uncodified personal rules or codified statutory laws. In any uncodified personal law or any
codified formal law, the recognition of the union of marriage between two people of the same
sex is neither recognized nor accepted. Restrictions must be in the public interest and
imposed by striking a just balance between deprivation of right and danger or evil sought to
be avoided.41

36
Joseph Shine v. Union of India, AIR 2018 SC 1676.
37
Maxine Eichner, Marriage and the Elephant: The Liberal Democratic State's Regulation of Intimate
Relationships Between Adults, 30 Harvard Journal of Law and Gender (2007).
38
Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.
39
Id.
40
Laurence Drew Borten, Sex, Procreation, and the State Interest in Marriage, 102 Columbia Law Review 1089
(2002).
41
M/s. Laxmi Khandsari and Ors. v. State of U.P. and Ors., (1981) 2 SCC 600.

20
[¶II.13] Hence, the aforementioned qualities and characteristics have a reasonable nexus to
the object of the legislation which are neither arbitrary, unfair, artificial nor unreasonable and
are based on fair and reasonable grounds. Therefore, the procedure established by law is just,
fair and reasonable in non-determination of same-sex marriage.

[2.2] THAT STATE HAS A LEGITIMATE INTEREST AND IT IS A MATTER OF PUBLIC POLICY.

[¶II.14] It is pertinent to note that the primary question under consideration is what
constitutes marriage and who decides what constitutes marriage, on which the state has a
legitimate interest as it is a matter of public policy and hence would not be within the
consideration of the judicial review.

[¶II.15] It was held in the case of Joseph Shrine,42 “Throughout history, the State has long
retained an area of Regulation in the institution of marriage. The State has regulated various
aspects of the institution of marriage, by determining the age when an adult can enter into
marriage; it grants legal recognition to marriage; it creates rights in respect of inheritance
and succession; it provides for remedies like judicial separation, alimony, restitution of
conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition,
parental responsibility; guardianship and welfare of the child. These are all areas of private
interest in which the State retains a legitimate interest since these are areas which concern
the society and public well-being as a whole.”

[¶II.16] In the impugned case, the question of granting same-sex couples the right to
marriage would result in redefining the definition of the institute of marriage which comes
within the ambit of the legislature which represents the will of the people. 43The state assumes
a prominent role in regulating marriage and its various aspects as it includes the conviction
that marriage is the social foundation of a stable society which is essential for the functioning
of the society. It is the foundation of the family and society, without which there would be
neither civilization nor progress. It has long been a great public institution, giving character to
our whole civil polity. 44

42
Joseph Shine v. Union of India, AIR 2018 SC 1676.
43
C. Powell, Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage
Equality, 84 Fordham Law Review (2015).
44
Obergefell v. Hodges, 576 U.S. (2015).

21
[2.2.1] JUDICIAL SELF-RESTRAINT IN PUBLIC POLICY MATTER.

[¶II.17] The legislature best comprehends the needs of the society. The decision to prescribe
such a qualification is in the realm of the wisdom of the legislature and the Courts do not sit
in review of such wisdom on the ground that the legislative decision is arbitrary. 45 What
alliances should be recognised as marriage and what not is a matter of public policy and the
legislature cannot be directed in the matters of public policy and the state is under no
obligation to accord recognition to such alliances as marriage.

[¶II.18] In cases involving cases with such imminent social bearing, the courts have taken a
cautious note and exercised judicial self-restraint as every legal action has a profound
implication in other areas as well. The Court cannot rewrite, recast or re-frame the legislation
for the good reason that it has no power to legislate since the power to legislate has not been
conferred upon the Court and, therefore, the Courts cannot add words to a statute or read
words into it which are not there. 46 The Courts are to decide what the law is and not what it
should be. 47 The scope of judicial review of governmental policy is now well defined. Courts
do not and cannot act as Appellate Authorities examining the correctness, suitability and
appropriateness of a policy, nor are courts advisors to the executive on matters of policy
which the executive is entitled to formulate. 48

[¶II.19] Therefore, in light of the legitimate state interest as the matter is perhaps a public
policy matter wherein the court ought not to interfere, granting same-sex couple the right to
marry under Article 21 would result in interference in the aforementioned legitimate state
interest.

[2.3] NO FUNDAMENTAL RIGHT CAN BE ABSOLUTE.

[¶II.20] It is pertinent to note that no Fundamental Right can be granted in its absolute sense
and is subject to a reasonable restriction that is based on a rational basis and is not irrational
or arbitrary. The fundamental right to marry does not include a right to make a State change
its definition of marriage.49 Our Constitution does not enact any one theory of marriage. 50The

45
State of A.P. and Ors. v. Mcdowell& Co. and Ors., (1996) 3 SCC 709.
46
Union of India and Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96.
47
Id.
48
Directorate of Film Festivals &Ors. v. Gaurav Ashwin Jain &Ors., (2007) 4 SCC 737.
49
Obergefell v. Hodges, 576 U.S. (2015).
50
Id.

22
people of a State are free to expand marriage to include same-sex couples, or to retain the
historic definition.51

[¶II.21] Marriage is coupled with social legitimacy in most cultures. Moreover, marriage is
also a bundle of rights – right to maintenance, inheritance, protection under domestic
violence laws, tax exemptions, surrogacy, adoption and others. Thus, the heterosexual
monogamous ideal of family is the centre of all legal frameworks. If we are to grant the Right
to marriage to same-sex couples then it will rupture the whole legal system as it is based on
the notion of heterogeneous marriages and would further be violative of personal as well as
codified laws. It will also violate the ‘degree of prohibited marriage’, ‘conditions of
marriage’ as envisaged in these personal laws which are based on the social point of view.

[¶II.22] In the case of Collector of Customs,52 It was said that, “It is one of the well-
established Rules of construction that "if the words of a statute are in themselves precise and
unambiguous no more is necessary than to expound those words in their natural and
ordinary sense, the words themselves in such case best declaring the intention of the
legislature.”

[¶II.23] It is an equally well-settled principle of construction that "Where alternative

constructions are equally open that alternative is to be chosen which will be consistent with
the smooth working of the system which the statute purports to be regulating; and that
alternative is to be rejected which will introduce uncertainty, friction or confusion into the
working of the system".

[¶II.24] Therefore, granting the fundamental right to marry same-sex couples would rupture
the working of the statutes and thus a harmonious interpretation between the working of these
statutes and reasonable restrictions on fundamental rights ought to be implemented. Thus,
Article 21 would not include within its ambit the right to marriage to be granted to same-sex
couples.

[2.4] THE RIGHT TO LIFE DOES NOT GIVE THE ABSOLUTE RIGHT TO MARRY A PERSON
OF ANY RELIGION.

[¶II.25] It is imperative to state here that although the right to choose one’s partner
irrespective of one’s faith is a fundamental right; the right is not absolute as certain practices

51
Id.
52
Collector of Customs v. Digvijaya Singhji Spinning & Weaving Mill, AIR 1961 SC 1549.

23
are restricted by the state which is against public policy and the law of the land which
includes same-sex marriage in religions such as Samahsutra.

[¶II.26] The Supreme Court in the case of Goolrokh M. Gupta53, held that, “Any custom or
usage irrespective of even any proof of their existence in pre-constitutional days cannot be
countenanced as a source of law to claim any rights when it is found to violate human rights,
dignity, social equality and the specific mandate of the Constitution and law made by
Parliament. No usage which is found to be pernicious and considered to be in derogation of
the law of the land or opposed to public policy or social decency can be accepted or upheld
by courts in the country.”

[¶II.27] Though Article 21 confers on every citizen the right to choose one’s partner
irrespective of one’s faith such a right cannot be absolute and such marriage cannot be
against public order or the law laid by the parliament.54 Every right conferred on an
individual is restricted on some reasonable grounds.55

[¶II.28] Secular legislation,56 of the country provides an individual with the right to register
marriage irrespective of one’s religion, but such legislation confers the right to only
heterosexual couples. In the impugned case, the ‘Samahsutra’ religion enables same-sex
couples to get married, 57 which is impermissible as it is against public policy and the law of
the land does not recognize such unions, rather provides contrary to it as stated in the
aforementioned line of argumentations. Therefore, the Right to life does include the right to
get married to any person belonging to any religion or sex.

ISSUE-III: WHETHER COURT OF LAWS IS PERMITTED TO ISSUE A RESTRAINING ORDER

AGAINST THE PRESS IN THE LIGHT OF ARTICLE 19 OF THE CONSTITUTION.

[¶III.1] It is humbly submitted before this Hon’ble Court that all though the Court is
permitted to issue a restraining order against the press in light of Article 19 of the
Constitution when there is an imminent danger to the administration of justice and fair trial.
But there ought to be a distinction between a blanket gag order and a partial gag order as in
the present case. The present case does not qualify for such restriction and the as the matter

53
Goolrokh M. Gupta v. BurjorPardiwala Dead and Ors., MANU/SC/1866/2017.
54
Yamanaji H. Jadhav v. Nirmala, (2000) 2 SCC 637.
55
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
56
Special Marriage Act, (1955).
57
Moot Proposition ,¶2.

24
under consideration affects the society at large, the citizenry of the country has the right to
know about it, which is a fundamental right under Article 19 of the Constitution.

[3.1] THAT THERE OUGHT TO BE DISTINCTION BETWEEN BLANKET AND PARTIAL GAG
ORDER.

[¶III.2] It is pertinent to note that there ought to be a distinction between a blanket gag order
and a partial gag order and the omnibus order against the press is detrimental to the right of
freedom of speech and expression guaranteed to the media as well the citizens.

[¶III.3] It is the settled law that the right to freedom of Speech and Expression in 19(1)(a)
includes the liberty of press,58 as it is the bulwark of a healthy, progressive and democratic
society. It leads to the creation of new ideas and knowledge, finding of truth, building
tolerance and receptivity and is essential for self-rule. 59

[¶III.4] In the present case, the Hon’ble Court has granted a blanket gag order against the
press due to frenzy reportage. But as a matter of principle, Courts ought to avoid blanket
orders against every kind of reportage as such orders are often detrimental to the citizen’s
right to know60 about the affairs of respective sections of the society and would thus
inevitably result in muzzling, stifling and choking of the free press and the right of a
journalist to ensure an informed society as guaranteed under Article 19.

[¶III.5] There needs to be distinction between blanket gag order and partial gag order and the
reportage of facts versus reportage of biased opinions and judgement. In restricting the latter,
former often suffers from such orders and thus even the informed and responsible reporting
suffers a setback which would thus be violative of Article 19. The actions taken herein are
not proportional to the harm it is trying to prevent and rather does more harm and Courts
ought to adopt less invasive measures.61

[¶III.6] If a particular section of media breaches the reporting standards which would affect
the administration of justice or privacy of an individual, then there should be a partial gag
against that section of media but imposing a blanket gag against the entire press goes against

58
Sakal Paper Pvt. Ltd. v. Union of India, AIR 1962 SC 305.
59
P.K. Tripathi, Spotlights on Constitutional Interpretation 278 (1978).
60
S.P. Gupta v. Union of India, AIR 1982 SC 149.
61
Om Kumar and Ors. v. Union of India, (2001) 2 SCC 386.

25
the spirit of the freedom of speech and expression as envisaged in Article 19 of the
Constitution.

[¶III.7] The Courts need to create an intelligible differentia between fair reportage and such
frenzy reportage to create a balance between the fundamental rights. Balancing the
considerations requires conducting a fact-specific inquiry, depending on the exact gag
order—what it’s protecting, who it restricts, and what the realities of the trial are. 62Therefore,
in the interest of freedom of the press and the citizens the distinction needs to be drawn and
blanket bans need not be imposed.

[3.2] CITIZENRY HAS A RIGHT TO KNOW AS THE CASE INVOLVES LARGER INTEREST OF
THE SOCIETY.

[¶III.8] It is imperative to state that the citizens have the right to know about the issue in
hand as the matter is not between the two parties but affects the society at large and involves
the larger interest of the society.

[¶III.9] The citizen must be comprehensively informed, know the opinion of others, and be
able to weigh them up against each other.63 The press keeps this dialogue alive, it provides
the information, adopts its own point of view, and thus works as a direction giving force to
the public debate.64freedom of press as an essential prerequisite of a democratic form of
democratic form of government and regarded it as the mother of all other liberties in
democratic society. 65

[¶III.10] A blanket gag order against the media is often fraught with serious consequences
for both free speech and the citizen’s right to receive information. The need for media
coverage and public scrutiny is all the greater. How the petitioner would benefit from the
complete absence of any reportage is unclear. It prevents legitimate comment upon the issue
under consideration by the people of their own community.

[¶III.11] In a country where the matter of marriage and religion is so intertwined with the
life’s of the citizenry that there is nothing which a man can do, whether in the way of wearing
62
Isabel Farhi, When Silence Isn’t Golden: How Gag Orders Can Evade First Amendment Protections,
Media Freedom & Information Access Clinic(Oct. 24, 2017), https://law.yale.edu/mfia/case-disclosed/when-
silence-isnt-golden-how-gag-orders-can-evade-first-amendment-protections.
63
Sean Macbride, 8 International Commission of Jurists, Journal of the International Commission of Jurists, 132
(1967).
64
Id.
65
Re: Harijai Singh &Anr. v. Re: Vijay Kumar, (1996) 6 SCC 466.

26
clothes or food or drink, which is not considered a religious activity,66 the issue under
consideration affects the society at large as it involves essential questions of marriage and
religion and thus involves the larger interest of the society and is not merely a private issue
between two parties.

[¶III.12] In addition to it, in cases wherein due to frenzy reportage, privacy of an individual
is being violated, the court can pass an order directing the non-disclosure of the name and
personal details of the person concerned similar to the provisions given under Section
327(3)67 of CRPC, until the trial comes to an end. This would help in creating a balance
between the right of an individual and the right of the citizens to know. In fact, in cases such
as the present case, wherein issues involved have an attached social taboo and unacceptance
to it, media coverage helps dissemination of information to more and more people and thus
helps in creating a public dialogue upon the issue and for many more people to speak
out.Therefore, as the matter involves the larger interest of the society, blanket ban on the
press should not be imposed.

[3.3] THERE IS NO IMMINENT DANGER TO THE ADMINISTRATION OF JUSTICE AND FREE

TRIAL.

[¶III.13] It is pertinent to note that there is no imminent danger which would affect the
administration of justice and the right of the petitioners to free trial and thus, blanket gag
order should not be imposed.

[¶III.14] Injunctions against publication can either be an order to prevent possible defamation
or invasion of privacy, or one aimed at protecting the fairness of a trial or investigation. The
Supreme Court did hold in Saharacase68, that the Court can grant preventive relief on a
balancing of the right to free trial and a free press. However, it favoured such temporary
restraint on publication “only in cases of real and substantial risk of prejudice” to the
administration of justice or a fair trial. In such cases, courts are duty-bound under inherent
jurisdiction. subject to above parameters, to protect the presumption of innocence which is
now recognised by this Court as a human right under Article 21.

66
A.S. Narayana Deekshitulu v. State of A.P. and others, (1996) 9 SCC 548.
67
Criminal Procedure Code § 327, (1973).
68
Sahara India Real Estate Corp. Ltd. v. SEBI, (2012) 10 SCC 603.

27
[¶III.15] In the impugned case, matters which are under adjudication here involve the verity
of constitutionality of the impugned law and a more liberal interpretation of fundamental
rights guaranteed under the constitution. It is a matter purely based on the interpretation of
the constitutional provisions and the wisdom of the Hon’ble judges. The chain of facts
showcases no evidence so as to reasonably conceive the fact that the media reportage is
causing a substantial risk of affecting the administration of justice or free trial.

[¶III.16] Pre-publication ban even under a court injunction can be justified in the interest of
justice only when there is a clear and imminent danger to the administration of fair justice
and not otherwise. 69Therefore, in light of the absence of any prejudice to the administration
of justice or free trial, the interim order of blanket gag order against the press ought to be set
aside.

ISSUE-IV: WHETHER THERE IS ANY PROHIBITION IN ANY LAW FOR PEOPLE TO COME
TOGETHER AND PRACTICE, PROFESS AND PROPAGATE A NEW RELIGION OF THEIR
CHOICE.

[¶IV.1] It is humbly submitted before this Hon’ble Court that although there is no explicit
restriction in law for people to come together and practice, profess and propagate a new
religion of their choice, reasonable restrictions can be imposed upon it on the ground of
public order, morality and health.

[¶IV.2] The said contention rests on 2 grounds, first, that Article 25 imposes a positive
obligation upon the state to maintain public order and second, the conversion in the present
case is being done by allurement and hence within the strictures of morality as stated in
Article 25(1). Also there needs to be a balance for the greater public good and social order
between a person's right to choose a faith and the reasonable restrictions imposed upon it.

[4.1] ARTICLE 25 IMPOSES POSITIVE OBLIGATION UPON THE STATE TO MAINTAIN THE
PUBLIC ORDER.

[¶IV.3] It is pertinent to note that Article 25 guarantees freedom of religion to every

individual guaranteed by the Constitution, but it imposes a positive obligation upon the state

69
Reliance Petrochemicals Ltd. v. Proprietors of Indian Express newspaper Bombay Pvt. Ltd., (1998) 4 SCC
592.

28
to protect others, in order to curb this freedom when it contravenes public order, morality and
health.

[¶IV.4] This Court in theSardar Syadna Taker Saifuddin Saheb70case, has summarised the
position in law. Though the learned Chief Justice's judgment is a dissenting judgment, some
of the principles which were not dissented from by the majority judgment, are apposite and
are, therefore, set out hereunder:

“A person is not liable to answer for the verity of his religious views, and he cannot be
questioned as to his religious beliefs, by the State or by any other person. Thus, though his
religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has
not the absolute right to act in any way he pleases in exercise of his religious beliefs.”

[¶IV.5] For people to come together and practice, profess and propagate a new religion of
their choice, the Constitution in light of Article 25 guarantees that freedom. But it is subject
to public order as in the present case wherein the conversion to the Samahsutra religion is
restricted on the ground that it affects public order. The expression “public order” is
synonymous with public peace, safety and tranquillity. 71

[¶IV.6] The word in the “interest of public order” and not “for maintenance of public order”.
A law may not be designed to directly maintain the public order and yet it may be enacted in
the interest of it, if it assists or is conducive to the maintenance of public order.72If the
doctrine of non-interference by the state is adopted in the present case, it will wreak havoc in
the society and would have far reaching ramifications on the society.

[¶IV.7] In the present case, the contention that rampant conversion to Samahsutra be
restricted is based on the fact that the tenets of Samahsutra religion which follows the left-
hand path to god which are controversial in itself are secretive and discrete in nature and are
akin to KKK, which has in fact been banned in various US states for its notoriety and
violence.

[¶IV.8] The fact that it allows sacrifices and satisfaction of carnal instincts amongst same-sex
accompanied with its discreet nature can incite violence and hatred and no doubt carry
enormous potential to incite violence and hatred between communities; they are immoral,

70
Sardar Syadna Taker Saifuddin Saheb v. The State of Bombay, (1962) 2 SCR 496.
71
Supt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
72
Ramjilal Modi v. State of U.P., AIR 1957 SC 620.

29
wicked and capable of producing dire consequences. By way of providing same-sex marriage
under the tutelage of its rituals, there can be other ulterior motives which would result in
other wrongs as well.

[¶IV.9] To that end, it certainly imposes responsibility on the state to curb the creation of an
even more fractured society and to prevent creating imbalance in the society. The ability of
the State to act in the public interest, including to protect public health, is an essential part of
Article 25.73 Therefore, conversion to the Samahsutra religion ought to be restricted on the
ground of public order.

[4.2] CONVERSION BY ALLUREMENT IS NOT PROTECTED UNDER ARTICLE 25 OF THE

CONSTITUTION.

[¶IV.10] It is pertinent to note that the conversion by the way of allurement as in the present
case is not protected by Article 25 and comes within the ambit of reasonable restriction of
morality as envisaged in Article 25(1).

[¶IV.11] The Supreme Court in the case of RevStainislaus,74while dealing with the said
contention held:

“We have no doubt that it is in this sense that the word "propagate" has been used in Article
25(1), for what the Article grants is not the right to convert another person to one's own
religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be
remembered that Article 25(1) guarantees "freedom of conscience" to every citizen, and not
merely to the followers of one particular religion, and that, in turn postulates that there is no
fundamental right to convert another person to one's own religion because if a person
purposely undertakes the conversion of another person to his religion, as distinguished from
his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom
of conscience" guaranteed to all the citizens of the country alike.”

[¶IV.12] In the impugned case, the act of calling others to join the Samahsutra religion only
on the pretext of same-sex marriage being provided under its tenets amounts to conversion of
another person to one’s religion as apposite to one’s effort to transmit or spread the tenets of
the religion that would amount impinge upon the freedom of conscience. Herein the act of

73
Adi Saiva Sivachariyargal v. Govt. Of Tamil Nadu &Anr., AIR 2016 SC 209.
74
Rev Stanislaus v. State of Madhya Pradesh, (1977) 2 SCR 611.

30
conversion of another person is done by using same sex as a bait to allure the youth in guise
of creating a new world order and that, there could be other ulterior motives behind it. The
same goes against the ‘freedom of conscience’ as guaranteed to all the citizens and thus
would face the strictures of the restriction of ‘Morality’ as laid down in article 25(1).

[4.2.1] BALANCING THE RIGHTS IN LARGER INTEREST OF PUBLIC.

[¶IV.13] Whenever there is a conflict between the two fundamental rights courts adopt a
balancing method to resolve the issue. As fundamental rights have to be read in cohesion of
one another, the right to choose one’s one own faith cannot be guaranteed while ignoring the
encroachment on one’s right to freedom of conscience. In the present case where the matter
of public at large is involved, the court needs to weigh them up with the help of facts
presented.

[¶IV.14] In Asha Ranjan75case, the test of larger public interest to balance two rights has
been explained in the following manner:“There can be a conflict between two individuals qua
their right Under Article 21 of the Constitution and in such a situation, to weigh the balance
the test that is required to be applied is the test of larger public interest and further that
would, in certain circumstances, advance public morality of the day. To put it differently, the
"greater community interest" or "interest of the collective or social order" would be the
principle to recognise and accept the right of one which has to be protected.”

[¶IV.15] In the present case, there is an imbalance between a right guaranteed and the
restrictions imposed on another are in conflict. Article 21 guarantees the right to choose one’s
faith whereas there are reasonable restrictions on public order, morality and health on the said
freedom under Article 25. Hence, in light of a conflict between the two rights, ‘greater
community interest’ or ‘interest of the collective or social order’ in the governing principle.
In light of the aforementioned argumentations, it is evident that such rampant conversion by
allurement would not be in the interest of the community at large and the social order.

[¶IV.16] Therefore, in lieu of the restrictions given under Article 25(1) and in order to create
a balance between the fundamental rights, restrictions ought to be imposed upon the
conversion to the Samahsutra religion.

75
Asha Ranjan v. State of Bihar and Ors., (2017) 4 SCC 397.

31
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
most humbly prayed that this Hon’ble Court mat be pleased to adjudge and declare:

 That the Ordinance titled ‘ The Unform Marriage Reforms (Amendment) Ordinance
2021’ is valid and ought to be implemented in its full letter and spirit.

 Right to life does not include the right to marry to any person belonging to any sex.

 State was within its limit on imposing reasonable restriction on the religion Samahsutra.

 The interim relief of gag order against the press be set aside.

And / Or

Pass any other order that this Hon’ble Court may deem fit in the interest of justice,
equity and good conscience.

SD/-
(Counsels for Respondents).

32