Team Penguin - Respondent Finalll

National Level Moot Court Competetion-2023 organized by Directorate Of Legal Studies &
Chennai Dr. Ambedkar Govt Law College Pattaraiperumbudur
TEAM CODE: PENGUIN
BEFORE THE HON’BLE SUPREME COURT OF DHOLAKPUR
PUBLIC INTEREST LITIGATION (PIL) NO……./2023

(UNDER ARTICLE 32 OF CONSTITUTION OF DHOLAKPUR)
IN THE MATTER OF
IMPLEMENTATION OF UNIFORM CIVIL CODE IN THE COUNTRY OF

DHOLAKPUR
IN THE MATTER BETWEEN
1. BHEEM AND KHALIYA

2. SHAKTHI………………………………………………….PETITIONERS
VS.
1. UNION OF DHOLAKPUR……………………………..…RESPONDENT
And
2. ALL INDIA MUSLIM PERSONAL

LAW BOARD…………………...………….IMPLEADING APPLICANT
MEMORANDUM ON BEHALF OF THE RESPONDENT
Memorandum on behalf of the RESPONDENT 1

TABLE OF CONTENTS
Table of Contents………………….……………………...…...…...………………….……..2
List of Abbreviations……………………………………….……………..……………..…..3
Index of Authorities…………………….……………………….……………....……….…..5
Statement of Jurisdiction……………….………………………………..……...……...…....9
Statement of Facts……………………….…………………………….………..…………..10
Issues Raised………………………………………………………...………………………11
Summary of Arguments……………………..…………………………………………..….12
Arguments Advanced……………………………………………………….………………14
1. Whether the PIL filed by the Trans Couple & Impleading Petition Filed by the
All-India Muslim Personal Law Board is Maintainable?........................................14
1.1 That no prima facie case for breach of Fundamental Rights had been established
1.2 That the alternative remedy was not exhausted
1.3 That the Impleading petition is Maintainable
2. Whether is it Feasible for Implementing Uniform Civil Code in a Multi- Cultural

and a Diverse Country like Dholakpur?....................................................................17
2.1 The implementation of UCC go against the Concept of Secularism
2.2 The implementation of UCC is practically difficult
2.3 That the implementation of UCC will go against the Custom followed for centuries
2.4 That the implementation of UCC will go against the Norms of the Nation
3. Whether UCC is violative of Ones' Fundamental Rights and other Personal Rights
Guaranteed under the Constitution of Dholakpur?.................................................23
3.1 That the implementation of UCC is against the Religious Freedom
3.2 That the UCC implementation will not ensure substantive equality
3.3 That the UCC is not needed in the present scenario

4. Whether the State can interfere in realm of personal laws? To what extent
regulation of personal law is required?......................................................................27
4.1 State Has Limitations In Interference With Personal Laws
4.2 Secular State Can't Interfere In Religious Affairs Of Petitioners
4.3 State should uphold Minority rights
5. Whether the Court can become an activist to uphold individual/personal rights

when the elected popular government is opposing the
same?.............................................................................................................................31
5.1 State Should Consider Public Morality And Deference
5.2 Public Morality / Social Morality
5.3 DPSP Is A Policy Matter Of State Which Is Non-enforceable In Courts
5.4 With Narrow Approach Court Can't Uphold Liberals' Rights While Government Restraint
To Implement.
6. Whether the Constitutional power of Court to frame laws has led to the scenario
where Legislature have become the Executive wing of the Judiciary?.....................37
6.1 Legislature Is The Law Making Body
6.2 Judicial Restraint Theory
6.3 The Judiciary Overreaches Its Constitutional Power.
6.4 Separation Of Powers Enshrined In Constitution
Prayer………………………………………………………………………………………..40

LIST OF ABBREVIATIONS
S.NO ABBREVIATIONS EXPANSIONS

1 ¶ Paragraph
2 % Percentage
3 AIR All India Reporter
4 Art Article
5 BOM Bombay
6 CAL Calcutta
7 CPC Civil Procedure Code
8 CRPC Criminal Procedure Code
9 DPSP Directive Principle of State Policy.
10 HC High Court
11 HCC High Court Case
12 HR Human Rights
13 IPC Indian Penal Code
14 NGO Non-Governmental Organisation
15 ORS Others
16 PIL Public Interest Litigation
17 SC Scheduled Caste
18 SCC Supreme Court Cases
19 SEC Section
20 SCR Supreme Court Reporter
21 UCC Uniform Civil Code
22 U/S Under Section
23 UOI Union Of India
24 V. Versus

INDEX OF AUTHORITIES
S.NO CASES REFERRED PG.NO

ISSUE 1
1. Union of India v. Paul Manickam, AIR 2003 SC 4622 12
2. Rashid v. LT.. Commission, AIR 1954 S.C, 207 13
3. Union of India v TR Verma, AIR 1957 S.C. 882. 13
4. Louise Fernandes v. Union of India (1988) 1 S.C.C. 201 13
5. P.N. Kumar v. Municipal Corporation Delhi, (1987) 4 S.C.C. 609 13
6. Satish Chandra v. Registrar of Cooperative Societies"(1994) 4 13
S.C.C 332
7. Ashok Babarao Patil v. State of Maharashtra and Ors, NO.575 OF 14
2017
8. Punnakkal Suresh vs. Saraswathi, OP(C).No. 814 of 2016 14
9. Ramesh Hirachand Kundanmal Vs. Municipal Corporation of 14
Greater Bombay 1992 (2) SCC 524
10. Kasturi Vs. Iyyamperumal, (2005) 6 SCC 733 14
11. Mumbai International Airport Vs. Regency Convention Centre, 14
(2010) 7 SCC 417.
12. Razia Begum Vs. Sahebzadi Anwar Begum, AIR 1958 SC 886 14
13. D. Venkatasubramaniam v. M.K. Mohan Krishnamachari, No. 3271 14
OF 2007
ISSUE 2
14. Indra v. Rajnarayan 1975 AIR, S.C 2299 15
15. S R. Bommai v. Union of India, [1994] 2 SCR 644 : AIR 1994 SC 15
1918 : (1994)3 SCC1)
16. Sneh Lata v. V.K. Mittal And Ors., 29 (1986) DLT 298, 1986 RLR 15
209
17. Bal Patil and Anr. v. union of India, Appeal (civil) 4730 of 1999 16
18. Sardar Taheruddin Syedna Sahib v. State of Bombay, (AIR 1962 16
SC 853)
19. Kesavananda Bharati v. State of Kerala, (AIR 1973 SC1461) 16

20. Aruna Roy v. Union of India, (2002) & SSC 368 16

21. Abhiram Singh v. C D Commachem, (2017)10 SCC 1 17
ISSUE 3
22. Ahmedabad Women's Action Group (AWAG) v. Union of India, 22
W.P. (C) No. 494/96
23. Pannalal Bansilal Pitti v. State of A P, 1996 AIR 1023 1996 SCC 23
(2) 498 JT 1996 (1) 516 1996 SCALE (1)405
24. Githa Hariharan v. Reserve Bank of India, (AIR 1999, 2. SCC 228). 23
ISSUE 4
25. Sardar Syedna Taher Saifuddin Saheb v State of Bombay , 27
MANU/SC/0072/1962
26. SR Bommai v Union of India , MANU/SC/0444/1994 (Bommai) 28
27. Ram-Janmbhoomi & AS Narayana Deekshitulu v State of Andhra 28
Pradesh, (1996) 9 SCC 548
28. Lily Thomas v Union of India (2000) 6 SCC 224 28
29. Rev Stainnislaus v State of Madhya Pradesh AIR 1977 SC 908 28
30. Church of God (Full Gospel) in India v KKRMC Welfare 28
Association AIR 2000 SC 2773
31. Acharya Maharaj v State of Gujarat AIR 1974 SC 2098. 28
ISSUE 5
32. Mr. ‘X’ v. Hospital ‘Z’ , (1975) 1 SCC 29 30
33. Shyam Narayan Chouksey v. Union of India, 2016 30
34. Hinsa Virodhak Sangh v. Mirzapur Kuresh Jamat & Ors , AIR 2008 30
SC 1892
35. Hanif Quareshi & Others v. State of Bihar , AIR 1958 SC 731 30
36. Nashirwar v. State of M.P , (1975) 1 SCC 29 31
37. State of Punjab v. Devans Modern Breweries Ltd , (2004) 11 SCC 31
26
38. K.A. Abbas v. Union of India , (1970) 2 SCC 780. (hereinafter K A 31
Abbas)
ISSUE 6
39. Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 35

40. Divisional Manager, Aravali Golf Course v. Chander Haas, (2008) 36

1 S.C.C. 683
41. Prem Chand v. Excise Commissioner, AIR 1963 SC 996 36
42. A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531: 37
43. Prakash Singh v. Union of India, (2006) 8 S.C.C. 1. 37
44. Swaraj Abhiyan-(I) v. Union of India & Ors., (2018) 12 SCC 170 37
45. Supreme Court Advocates-on-Record-Association v. Union of 37
India, (1993) 4 SCC 441
LEXICON
1. B. A. Garner, Black’s Law Dictionary (9th edn, 2009).
2. New International Webster’s comprehensive Dictionary (Encyclopaedia edn).
3. Collins Gem English Thesaurus, 8th Edn. 2016, Collins.
4. Garner Bryana, Black’s Law Dictionary, 7th Edn.1981, West Group.
5. Catherine Sounes, Oxford Dictionary Thesaurus. 40th Edn. 2006, Oxford University
Press.
BOOKS REFERRED
1. M.P. Jain, The Constitution of India, Ed., 2020, Bharat Law House.
2. D.D Basu, The Indian Constitution, Ed., 2019, Allahabad Law House.
3. Samaraditya Pal, India’s Constitution – Volume 2 original & Evolution ( LexisNexis,
Gurgaon, 1st edn., 2014)
4. Dr. V.N Shukla, The Constitution of India, Ed, 14th, 2022, EBC explore
5. Constituent Assembly Debates, Volume 7
6. Seervai H.M. Constitutional Law of India, Ed, 4, Volume 3
INTERNATIONAL CONVENTIONS
1. Universal Declaration Of Human Rights, 1948

2. The Convention On Elimination Of All Forms Of Discrimination Against Women,
1981
3. International Convention On Civil And Political Rights, 1966
4. The European Convention On Human Rights., 1953

STATEMENT OF JURISDICTION
The counsel humbly submits that the Petitioners has approached this Hon’ble court under
Article 32 of the Constitution of Dholakpur
Article 32 in The Constitution of Dholakpur:
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution
The Hon’ble Supreme Court tagged all matters together for the purpose of hearing
together. The Respondents submits to the jurisdiction and objects to the maintainability

STATEMENT OF FACTS
BACKGROUND
Dholakpur is a conservative country where, the Government’s ideology is based out of the
majoritarian religion (Hindu) to impose Uniform Civil Code (UCC). State of Atlantica which
was a Portuguese Colony, is the only state in Dholakpur which has successfully implemented
UCC. In the year 2018, the Hon’ble Supreme Court of Dholakpur, decriminalised
homosexuality.
PUBLIC INTEREST LITIGATION – I
Bheem, a Hindu trans-woman and Khaliya, a Muslim trans-man gets married, but were not
able to register their marriage since, neither of them fall under the definition of “bride” and
“groom” and they also belong to two different religions. In the meantime, Khaliya gets
pregnant and gives birth to a baby boy. They were not able to get the birth certificate for their
son as their marriage was not registered, further, Khaliya who gave birth to the child, claims
the status of father in the birth certificate. Thus, they have filed a Public Interest Litigation
(PIL) before the Hon’ble Supreme Court of Dholakpur with plea of issuance of birth certificate
to their child, recognition of their marriage and implementation of a UCC recognising both the
same sex marriage and inter-religious marriage to grant equal rights to all.
PUBLIC INTEREST LITIGATION – II
Shakthi, an NGO, working for the welfare of Muslim women has been fighting for the
implementation of UCC in the country. Therefore, they have filed a PIL before the Hon’ble
Supreme Court of Dholakpur, seeking the implementation of UCC across the country of
Dholakpur wherein women irrespective of religion will have equal rights.
IMPLEADING PETITION
The All India Muslim Personal Law Board (AIMPB) is opposing the implementation of UCC
and have filed the impleading petition in both the PIL’s filed by the NGO and the trans-couple.
The Supreme Court has posted all the applications together along with the question of
maintainability of PIL and necessity of impleading AIMPB for hearing.

ISSUES RAISED
ISSUE 1
Whether the PIL filed by the Trans Couple & Impleading Petition Filed by the All-
India Muslim Personal Law Board is Maintainable?
ISSUE II
Whether is it Feasible for Implementing Uniform Civil Code in a Multi- Cultural and a
Diverse Country like Dholakpur?
ISSUE III
Whether UCC is violative of Ones' Fundamental Rights and other Personal Rights
Guaranteed under the Constitution of Dholakpur?
ISSUE IV
Whether the State can interfere in realm of personal laws? To what extent regulation of
personal law is required?
ISSUE V
Whether the Court can become an activist to uphold individual/personal rights when the
elected popular government is opposing the same?
ISSUE VI
Whether the Constitutional power of Court to frame laws has led to the scenario where
Legislature have become the Executive wing of the Judiciary?

SUMMARY OF ARGUMENTS
1. Whether the PIL filed by the Trans Couple & Impleading Petition Filed by the
All-India Muslim Personal Law Board is Maintainable?
❖ The counsel for the Respondent humbly submits before the Hon’ble Court that the
instant matter is not maintainable before the Court of Law. The petitioner lacks the
essential ingredients to maintain the matter before the apex Court. Though the Hon’ble
Court has clubbed the matters, yet certain issues regarding maintainability of the case
must be highlighted before this Court to prevent any miscarriage of justice.
2. Whether is it Feasible for Implementing Uniform Civil Code in A Multi- Cultural

And A Diverse Country like Dholakpur?
❖ The counsel for the Respondent humbly submits that it is not feasible for implementing
Uniform Civil Code in a multi-cultural and a diverse country like Dholakpur. Uniform
Civil Code breaks the nation into a hysterical jubilation and frantic wailing. Dholakpur
is a country of great religious, ethnic, and caste diversity. As a result of this cultural
diversity, it is practically impossible to develop uniform rules for personal issues such
as marriage.
3. Whether UCC is violative of Ones' Fundamental Rights and other Personal Rights
Guaranteed under the Constitution of Dholakpur?
❖ The counsel for the Respondent humbly submits that UCC is violative of Fundamental
rights and other personal rights guaranteed under the Constitution of Dholakpur. It is
humbly State has no religion and the State has to treat all religions and religious people
equally and with equal respect without in any manner interfering with their Individual
rights of religion, faith and worship.

4. Whether the State can interfere in realm of personal laws? To what extent
regulation of personal law is required?
❖ The counsel for the respondents humbly submits that the State have limitations in
interference with Personal laws and also can't regulate it directly, or by direction of
Interpretation of courts or violation of basic human rights.
5. Whether the Court can become an activist to uphold individual/personal rights

when the elected popular government is opposing the same?
❖ The counsel for the respondents humbly submits that Judiciary can't act as activist here
to uphold individual rights. State should uphold the public morality and DPSP is policy
matter of state hence It's non-enforceable in Courts.
6. Whether the Constitutional power of Court to frame laws has led to the scenario
where Legislature have become the Executive wing of the Judiciary?
❖ The counsel for the respondents humbly submits that the Legislature is Law making
body and Court have been seperated from Overreach of it's jurisdiction towards
Framing laws and Executions.

ARGUMENTS ADVANCED
ISSUE 1
WHETHER THE PIL FILED BY THE TRANS COUPLE & IMPLEADING PETITION
FILED BY THE ALL INDIA MUSLIM PERSONAL LAW BOARD IS
MAINTAINABLE?
❖ The counsel for the Respondent humbly submits before the Hon’ble Court that the
instant matter is not maintainable before the Court of Law. The petitioner lacks the
essential ingredients to maintain the matter before the apex Court. Though the Hon’ble
Court has clubbed the matters, yet certain issues regarding maintainability of the case
must be highlighted before this Court to prevent any miscarriage of justice.
1.1 That no prima facie case for breach of Fundamental Rights had been established:
1. The counsel humbly submits that the exercise of the writ jurisdiction of the Supreme
Courts under Article 321 is largely discretionary in nature, it is argued that the present
petition is not maintainable on the grounds; That no prima-facie case for breach of
fundamental rights has been established; That the Petitioner should have filed petition
in high court of Indus under Article 2262.
2. It is humbly submitted that Art 32 provides the right to constitutional remedies which
means that a person has a right to move to the Hon'ble Supreme court for getting his
fundamental rights protected. The principle for filing a writ petition before Hon'ble
supreme court is that there must be a breach of fundamental right of the petitioner by
the respondent. In the present case there is no prima facie case for breach of
fundamental rights of the petitioners.
3. It is humbly submitted that in Union of India v. Paul Manickam3, Moreover, in order
to invoke the jurisdiction under Art. 32 of the Constitution to approach this Court
directly, it has to be shown by the petitioner as to why the High Court has not been
approached, could not be approached or it is futile to approach the High Court. Unless
satisfactory reasons are indicated in this regard, filing of petition in such matters
directly under Art. 32 of the Constitution is to be discouraged.
1
INDIA CONST. art. 32
2
3
Union of India v. Paul Manickam, AIR 2003 SC 4622

4. Hence, it is submitted that the petition submitted before this Hon’ble Court is not
maintainable and thus should be rejected.
1.2 That the alternative remedy was not exhausted:
5. It is humbly submitted before the Hon'ble Supreme Court that the Doctrine of
Exhaustion of Alternative Remedies directs that a litigant must approach the forum
that is nearest to him in the chain of judicial structure. The extraordinary jurisdiction of
the writ courts should not be obscured by cases that can be settled by other fora which
was observed in Rashid v. LT.. Commission4.
6. When an alternative and equally efficacious remedy is open to litigant, he should be
required to pursue that remedy and not to invoke the special jurisdiction of the writ
courts which is observed in Union of India v TR Verma5. Wherever the vires of the
statute are capable of being examined by the HC, the SC has usually redirected the
petitioner to pursue that course of action, before petitioning under Art.32 observed in
Louise Fernandes v. Union of India6.
7. It is humbly submitted that In P.N. Kumar v. Municipal Corporation Delhi7. The SC
redirected the petitioner to approach the HC under Art. 226 and reasoned that the scope
of the article was wider. Also, in Satish Chandra v. Registrar of Cooperative
Societies8" the remedy under Art. 226 were specially stated as the alternate remedy,
and the petition under Art. 32 were consequently dismissed.
1.3 That the Impleading petition is Maintainable:
8. The counsel for the Respondent humbly submits that “Dominus litus” is the person to
whom a suit belongs. This also means master of a suit. This is the party who has a real
interest in the decision of a case. It is this person who will be affected by the decision
in a case. This person derives benefits if the judgment is in his favour, or suffers the
consequences of an adverse decision. if any third party is likely to suffer any injustice,
on account of the outcome of the suit, he is entitled to get himself impleaded.
4
Rashid v. LT.. Commission, AIR 1954 S.C, 207
5
Union of India v TR Verma, AIR 1957 S.C. 882.
6
Louise Fernandes v. Union of India (1988) 1 S.C.C. 201
7
P.N. Kumar v. Municipal Corporation Delhi, (1987) 4 S.C.C. 609
8
Satish Chandra v. Registrar of Cooperative Societies"(1994) 4 S.C.C 332

9. The Bombay High court in Ashok Babarao Patil v. State of Maharashtra and Ors
9
have observed that the court has all power to add a party as defendant if necessary to
decide a suit, even if the plaintiff does not choose to implead said party. In Punnakkal
Suresh vs. Saraswathi10 in this case kerala High Court have observed that additional
defendant can be added in the suit even if petitioner thinks the party is not necessary.
10. It is humbly submitted that though A person who is not a party has no right to be
impleaded against the wishes of the plaintiff unless it is a compulsion of the rule of law
or unless a party proposed to be added has a direct and legal interest in the controversy
involved in the Suit. Ramesh Hirachand Kundanmal Vs. Municipal Corporation of
Greater Bombay11, Kasturi Vs. Iyyamperumal12, Mumbai International Airport Vs.
Regency Convention Centre13.
11. The counsel for the Respondent humbly submits that in Razia Begum Vs. Sahebzadi
Anwar Begum14, legal interest is interpreted to mean that the result of the Suit affects
the third party legally. A proper party is one in whose absence an effective order can be
made but whose presence is necessary for a complete, effective and proper adjudication
on the questions involved in the proceeding.
12. It is humbly submitted that in D. Venkatasubramaniam v. M.K. Mohan
Krishnamachari15 this Court held that an order passed behind the back of a party is a
nullity and liable to be set aside only on this score. Therefore, a person against whom
an order is passed against him, he should be impleaded as a respondent being a
necessary party. From the above submission the counsel for the Respondent humbly
submits that the instant matter is not maintainable before the Court of Law.
9
Ashok Babarao Patil v. State of Maharashtra and Ors, NO.575 OF 2017
10
Punnakkal Suresh vs. Saraswathi, OP(C).No. 814 of 2016
11
Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay 11, 1992 (2) SCC 524
12
Kasturi Vs. Iyyamperumal12, (2005) 6 SCC 733
13
Mumbai International Airport Vs. Regency Convention Centre 13, (2010) 7 SCC 417.
14
Razia Begum Vs. Sahebzadi Anwar Begum14, AIR 1958 SC 886
15
D. Venkatasubramaniam v. M.K. Mohan Krishnamachari, No. 3271 OF 2007

ISSUE 2
WHETHER IS IT FEASIBLE FOR IMPLEMENTING UNIFORM CIVIL CODE IN A
MULTI- CULTURAL AND A DIVERSE COUNTRY LIKE DHOLAKPUR?
❖ The counsel for the Respondent humbly submits that it is not feasible for implementing
Uniform Civil Code in a multi cultural and a diverse country like Dholakpur. Uniform
Civil Code breaks the nation into a hysterical jubilation and frantic wailing. Dholakpur
is a country of great religious, ethnic, and caste diversity. As a result of this cultural
diversity, it is practically impossible to develop uniform rules for personal issues such
as marriage.
2.1 The implementation of UCC go against the Concept of Secularism:
13. It is humbly submitted that the use of these three words "Uniform Civil Code" breaks
the nation into a hysterical jubilation and frantic wailing. The main reason of contention
revolving around UCC has been secularism and the freedom of religion enumerated in
the Constitution of India.
14. The preamble of the Constitution states that India is a "secular democratic republic"
This means that there is no State religion observed in Indra V. Rajnarayan16. A secular
State shall not discriminate against anyone on the ground of religion. A State is only
concerned with the relation between man and man. It is not concerned with the relation
of man with God. It does not mean allowing all religions to be practiced. It means that
religion should not interfere with the mundane life of an individual. S R. Bommai v.
Union of India17 established the fact that India was secular since the formation of the
republic.
15. It is humbly submitted that, the Lata Mittal case18 of 1985 is a perfect example of this.
She won a 20-year legal battle which led to Hindu daughters being given equal rights
in ancestral property. Before, joint-heirship in parental property was not given to Hindu
daughters. Article 44 of the Indian constitution says, "The state shall endeavor to secure
a Uniform Civil Code for the citizens throughout the territory of India." This means that
the constitution is directing the government to bring all communities together on
16
Indra v. Rajnarayan16 1975 AIR, S.C 2299
17
S R. Bommai v. Union of India, [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1)
18
Sneh Lata v. V.K. Mittal And Ors., 29 (1986) DLT 298, 1986 RLR 209

matters that are currently governed by their respective personal laws observed in Bal
Patil and Anr. v. union of India19.
2.2 The implementation of UCC is practically difficult:
16. It is humbly submitted that, Dholakpur is a country of great religious, ethnic, and caste
diversity. As a result of this cultural diversity, it is practically impossible to develop
uniform rules for personal issues such as marriage. Additionally, convincing each
community to abandon centuries-old traditions in favour of a new law is difficult.
Religious minorities view the UCC as an infringement on their right to religious
freedom. They fear that their traditional religious practices will be supplanted by the
majority religious communities' rules and diktats. In Sardar Taheruddin Syedna Sahib
v. State of Bombay20, the apex court held that 'Art. 25 & 26 serve to emphasise the
secular nature of the Indian democracy, which the founding fathers considered to be the
very basis of the Constitution.
17. The counsel for the Respondent humbly submits that, the state should abstain from
interfering in personal matters, the constitution guarantees the right to practise any
religion. UCC would constitute a violation of that right. There are already controversies
surrounding the beef ban, the saffronisation of school and college curricula, and love
jihad, to name a few.
18. At the moment, the introduction of UCC would exacerbate the problem by increasing
Muslims' insecurity and vulnerability to fundamentalist and extremist ideologies. In
Kesavananda Bharati v. State of Kerala21, the Supreme Court held that that secularism
was a part of the basic structure of the Constitution.
19. It is humbly submitted that, many rural communities do not follow this Act, because
they are more comfortable deciding such disputes based on their community traditions
and practices. Even women from such communities prefer to go to the local panchayats
rather than formal courts and the reasons could range from them being too alien, distant,
and expensive to the time that the courts take to deliver judgements.
20. The Court held that secularism is the basic structure of the Constitution and therefore
cannot be amended. Secularism is derived from the cultural principle of tolerance and
19
Bal Patil and Anr. v. union of India, Appeal (civil) 4730 of 1999
20
Sardar Taheruddin Syedna Sahib v. State of Bombay, (AIR 1962 SC 853)
21
Kesavananda Bharati v. State of Kerala, (AIR 1973 SC1461)

ensures the equality of all religions Aruna Roy v. Union of India22, Abhiram Singh v.
C D Commachem23 . It is humbly submitted that, the right to follow personal laws is
among the fundamental rights and it will be tantamount to interference if the state
decides to legislate on matters of religion and culture. “This secular State which we are
trying to create should not do anything to interfere with the way of life and religion of
the people
2.3 That the implementation of UCC will go against the Custom followed for centuries:
21. The counsel humbly submits that And as the issues of marriage, divorce and succession
are civil, chances are that even after enacting a UCC, many tribal and rural communities
may not follow it and continue with their own tribal or customary practices. Their
dominant view was that the implementation of UCC was M. Muhammad Ismail was
the first member to propose amendment to Article 35. He proposed the following
proviso to be added: "Provided that any group, section or community of people shall
not be obliged to give up its own personal law in case it has such a law."
22. The counsel humbly submits that the directive principles of the Constitution themselves
visualise diversity and attempt to foster uniformity among people of different faiths. A
uniform law, though is highly desirable, enactment thereof in one go perhaps may be
counter-productive to unity and integrity of the nation.
23. In a democracy governed by rule of law, gradual progressive change and order should
be brought about. Making law or amendment to a law is a slow process and the
legislature attempts to remedy where the need is felt most acute. It would, therefore, be
inexpedient and incorrect to think that all laws have to be made uniformly applicable
to all people in one go. The mischief or defect which is most acute can be remedied by
process of law at stages.
24. It is humbly submitted that, The legislation has granted same-sex couples the same
opportunities as that of heterosexual couples to solemnise their marriage by way of a
civil ceremony and also by way of a religious ceremony provided that religious
organisation has ‘opted in’ to solemnising such marriages.
25. The Marriage (Same Sex Couples) Act 2013 provides that same-sex marriages cannot
be solemnized on religious premises or by way of a religious ceremony without the
22
Aruna Roy v. Union of India, (2002) & SSC 368
23
Abhiram Singh v. C D Commachem, (2017)10 SCC 1

express consent of the religious organization concerned. The Marriage (Same Sex
Couples) Act 2013 also contains provisions to ensure that if religious organizations and
their representative do not wish to solemnize such marriages, they cannot be compelled
to do so.
26. The counsel for the Respondent humbly submits that The Government of Dholakpur
entrusted the law commission to give its opinion on UCC and in its 185-page
consultation paper maintained that to preserve the cultural and social fabric of the nation
we need to protect and preserve diversity and plurality.
27. They urged that the legislature should first consider guaranteeing equality ‘within
communities’ between men and women, rather than ‘equality between’ communities’
exemptions under the Constitution must be honoured and UCC could disturb the
essence of the Constitution. “Constitution itself has given so many exemptions to so
many people like the tribals, etc. There are exemptions even in Civil Procedure Code
and Criminal Procedure Code
2.4 That the implementation of UCC will go against the Norms of the Nation:
28. The counsel humbly submits that the main argument against a UCC is that it violates
the constitutional freedom to practise the religion of choice which allows religious
communities to follow their respective personal laws. For example, Article 2524 gives
every religious group the right to manage its own affairs. Article 2925 gives them the
right to conserve their distinct culture.
29. Secondly, it is also argued that if codified civil laws and criminal laws like the CrPC
and IPC don't follow ‘one nation, one law’, then how can this diktat be applied to
diverse personal laws of various communities. For example, the Indian Evidence Act
of 1872, a federal act, was amended by the governments of West Bengal and Tamil
Nadu. With respect to criminal law, note that different states have different legal ages
for drinking alcohol.
30. It is humbly submitted that, the framers of the constitution didn't intend total
uniformity. Personal laws were placed in the Concurrent List, entry number 5, giving
both the Parliament and State Assemblies the power to legislate on personal issues. If
24
25

the framers of the Constitution intended uniformity in personal laws, they would have
put them on the union list, giving parliament all the power to legislate on them.
31. It is humbly submitted that it is alleged that a UCC will impose a Hinduised code for
all communities. For example, a UCC could include provisions regarding personal
issues like marriage, that are in line with Hindu customs but will legally force other
communities to follow the same. In Dholakpur, a uniform civil code relating to
marriage, divorce, and succession, in reality, is not feasible because of its diversity of
religions and their respective practices.
32. It is humbly submitted that Dholakpur is not a homogeneous society. In fact, it is
heterogenous in many ways. UCC would not be an effective means to secure equal
rights for the entire populace of India. The effects of such a uniform code would be felt
in drastically different ways by each community and not always for the better.
33. By way of example, if the practice of polygamy was banned in a UCC, rights afforded
to Hindu women would likely not be much affected, since the Hindu Code Bill banned
bigamy in 1955. On the other hand, Muslim women, who are part of a community that
practises polygamy and whose rights are protected under Muslim personal law, as 2nd,
3rd and 4th wives, would in fact under a UCC, find themselves “illegal” and no longer
entitled to the protections that they currently have such as each wife being entitled to
maintenance.
34. The counsel for the Respondent humbly submits that since various communities exist
in Dholakpur, there are various different customary practices that are followed. It is not
possible for a UCC to reflect all these customary practices. Since a UCC will be passed
by a Hindu legislature on Muslim, Christian, Buddhist, Sikh, various tribal etc.
populations, it is to be expected that there would be keen resistance to such forceful
change.
35. Further, even within Hinduism, the community is not entirely homogenous, and thus,
only voices of the majority Hindu community would likely be reflected at the expense
of others. This was also a contention when Sikhs and Buddhists were made subjects of
Hindu Code Bill 1955 due to wordings of Art. 25 of the Indian Constitution. Thus, this
issue of representation, which is true for any democracy, would silence the many
minority voices, and be detrimental to minority interests.

36. It is humbly submitted that Although UCC has been successful in societies like Turkey,
Cyprus, etc., it is unlikely to have the same result in India, which is Hindu-majority
state.
37. These are countries with Muslim majorities where a top-down approach by Muslims
for Muslims does not trigger the same level of identity tensions. This is however not
the case in India. Muslims and people of other communities and faiths constitute
minorities in Dholakpur.. It seems such communities will see a UCC as a forced
compulsion to accept a uniform code by the government against their freedom of
religion.
38. From the above submission the counsel for the Respondent humbly submits that it is
not feasible for implementing Uniform Civil Code in a multi-cultural and a diverse
country like Dholakpur.

ISSUE 3
WHETHER UCC IS VIOLATIVE OF ONES' FUNDAMENTAL RIGHTS AND
OTHER PERSONAL RIGHTS GUARANTEED UNDER THE CONSTITUTION OF
DHOLAKPUR?
❖ The counsel for the Respondent humbly submits that UCC is violative of Fundamental
rights and other personal rights guaranteed under the Constitution of Dholakpur. It is
humbly State has no religion and the State has to treat all religions and religious people
equally and with equal respect without in any manner interfering with their Individual
rights of religion, faith and worship.
3.4 That the implementation of UCC is against the Religious Freedom:
39. It is humbly submitted that, the matter of retaining personal law is nothing new; we
have precedents in European countries. Yugoslavia, for instance, that is, the kingdom
of the Serbs, Croats and Slovenes, is obliged under treaty obligations to guarantee the
rights of minorities,” he said. certain aspects of the Civil Procedure Code which have
already interfered with our personal laws and very rightly so. But during the 175 years
of British rule, they did not interfere with certain fundamental personal laws. The
Supreme Court has ruled in Bal Patil and Anr. v. Union of India26 that the State has
no religion and the State has to treat all religions and religious people equally and with
equal respect without in any manner interfering with their Individual rights of religion,
faith and worship.
40. The counsel humbly submits that they have been imposed gradually as occasion arose
and they were intended to make the laws uniform although they clash with the personal
laws of a particular community. But take the case of marriage practice and the laws of
inheritance. They have never interfered with them. It will be difficult at this stage of
our society to ask the people to give up their ideas of marriage, which are associated
with religious institutions in many communities.
41. It is humbly submitted that, “People seem to have very strange ideas about secular State.
People seem to think that under a secular State, there must be a common law observed
by its citizens in all matters, including matters of their daily life, their language, their
culture, their personal laws. That is not the correct way to look at this secular State. In
26
Bal Patil and Anr. v. union of India, Appeal (civil) 4730 of 1999

a secular State, citizens belonging to different communities must have the freedom to
practise their own religion, observe their own life and their personal laws should be
applied to them.
42. The counsel for the Respondent humbly submits that, the Britisher, having conquered
this country, has been able to carry on the administration of this country for the last 150
years and over was that he gave a guarantee of following their own personal laws to
each of the various communities in the country. That is one of the secrets of success
and the basis of the administration of justice on which even the foreign rule was based.
3.2 That the UCC implementation will not ensure substantive equality:
43. It is humbly submitted that, It is very easy to copy sections from other constitutions of
countries where the circumstances are entirely different. There are ever so many
multitudes of communities following various customs for centuries or thousands of
years. By one stroke of the pen you want to annul all that and make them uniform. We
have ourselves further on provided for concurrent jurisdiction to the provinces as well
as to the Centre in matters of succession, marriage divorce and other things. How is it
possible to have uniformity when there are eleven or twelve legislative bodies ready to
legislate on a subject according to the requirements of their own people and their own
circumstances.
44. The counsel humbly submits that Secular State does not mean that it is anti-religious
State. It means that it is not irreligious but non-religious and as such there is a world of
difference between irreligious and non-religious. The right to freedom of practice of
religion also includes the right to manage affairs in the matters of religion by respective
religious denomination. So every religion has a set of its own personal laws according
to which a person of that religion is governed. Personal laws have been part of the
society from centuries in the form of customs or usages,
45. In Ahmedabad Women's Action Group (AWAG) v. Union of India27, a PIL was filed
challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory
and non-statutory law. This time the Supreme Court became a bit reserved and held that
the matter of removal of gender discrimination in personal laws "involves issues of
State policies with which the Court will not ordinarily have any concern".
27
Ahmedabad Women's Action Group (AWAG) v. Union of India, W.P. (C) No. 494/96

46. In Pannalal Bansilal Pitti v. State of A P28 the court pointed out:—The first question
is whether it is necessary that the legislature should make law uniformly applicable to
all religious or charitable or public institutions and endowments established or
maintained by people professing all religions. In a pluralist society like India in which
people have faith in their respective religions, beliefs or tenets propounded by different
religions or their off-shoots, the founding fathers, while making the Constitution, were
confronted with problems to unify and integrate people of India professing different
religious faiths, born in different castes, sex or sub-sections in the society speaking
different languages and dialects in different regions and provided a secular Constitution
to integrate all sections of the society as a united Bharat.
3.3 That the UCC is not needed in the present scenario:
47. The counsel for the Respondent humbly submits that Personal law has seen
modernisation in the past due to judicial activism and initiatives by the community. In
Githa Hariharan v. Reserve Bank of India29 (1999), struck down the provision of
Hindu Minority and Guardianship Act, 1956, which holds the father to be born the
natural guardian of a Hindu child as unconstitutional. The court held that the father
cannot have a preferential right over the mother in the matter of guardianship. This
example is given to show that the absence of UCC has not meant that personal laws are
not being modified at all. Although change can be slower and at the will of the
community, gradual development continues.
48. It is humbly submitted that Even women from these communities prefer to go to the
local panchayats rather than formal courts as they are alien, distant, and expensive and
decisions take a very long time and are not always decided in favor of women. Since
issues of marriage, divorce succession, etc. are civil in nature, even if a UCC is enacted,
many rural and tribal communities may not follow it and continue with their own tribal
and customary practices.
49. The counsel humbly submits that the question of the uniform application of the Goa
Civil Code can be answered with the following facts: According to Gentile Hindus of
Goa, Daman and Diu Codes of Customs and Use, Hindu men are entitled to polygamy
under particular conditions According to Gentile Hindus Codes of Uses and Customs,
28
Pannalal Bansilal Pitti v. State of A P, 1996 AIR 1023 1996 SCC (2) 498 JT 1996 (1) 516 1996 SCALE (1)405
29
Githa Hariharan v. Reserve Bank of India, (AIR 1999, 2. SCC 228).

divorce in Hindus is allowed only on the condition of the woman's adultery. Bigamy is
also permitted on the grounds of the first woman's failure to deliver any kid until she is
25 and the first wife's failure to deliver a man's child until she is 30. This shows that it
is not applied to all its residents uniformly. In this Code, there are various loopholes.
50. The counsel humbly submits that Muslim males cannot perform polygamy if they are
married in accordance with the Code. Unfair adoption and rights of unlawful children
After receiving approval from the office of civil registrar, Catholic Christians can
solemnise their marriage in the Church. However, Non-Catholics can register their
marriage only in the civil registrar's office.
51. The preceding facts about the Code clarify that there are many such deviations to it that
it does not actually constitute a uniform code. Exceptions to the practise of monogamy
are only permitted for Hindus and other communities. In comparison to legitimate
offspring, the rights of illegitimate children are likewise unequal. It is also important to
note that Catholic and non-Catholic marriages are treated differently.
52. Thus, it is imperative that the demand for Uniform Civil Code should come from all
sections of society, specially minority communities. The pros and cons of Uniform
Civil Code should be thoroughly discussed and debated by all. Enlightened and
responsible Statesperson should come forward and promote the need and necessity of
Uniform Civil Coed amongst the commoners and motivate them towards a common
consensus that aims at establishing a Uniform Civil Code for the entire Republic of
India. Further, we believe that formal equality under law does not translate into
substantive equality in practice.
53. Therefore, from the above submission the counsel for the Respondent humbly submits
that the implementation of UCC will violate Fundamental Rights and other personal
Rights guaranteed under Constitution.

ISSUE 4
WHETHER THE STATE CAN INTERFERE IN REALM OF PERSONAL LAWS?
TO WHAT EXTENT REGULATION OF PERSONAL LAW IS REQUIRED?
4.1 State Has Limitations In Interference With Personal Laws
4.1.1 Personal Law Can't Comes Under The Purview Of Article 13

48. The counsel for the respondents humbly submits that The case of the State of Bombay
v. Narasu Appa Mali, The court clarified that the personal laws are not susceptible to
the Fundamental Rights guaranteed under Part III of the Constitution. Before answering
this contention, the Court looked into whether personal laws mean “law” or a “law in
force” as stated in Article 13
49. In the division bench, Justice Gajendragadkar and Justice Chagla, with their differing
rationale, concluded that personal law is not “law” or a “law in force” under Article 13.
Justice Gajendragadkar based his reasoning on a narrow interpretation of Article 13,
stating that the word “law” in the article contemplates only a statutory law vis-à-vis one
duly passed by the Legislature. Since personal laws are not statutory laws, they are
excluded from the ambit of Article 13. He stated thus,“But the expression “laws in
force” is, in my opinion, used in Article 13(1) not in that general sense. This
expression refers to what may compendiously be described as statutory laws.”
50. It is necessary to note that in this case, it was also argued that personal laws are
considered laws because importantly of the words “custom or usage” used in Article
13(3)(a). However, this contention was rejected by J. Chagla who stated that the
Constitution drafters did not intend the personal laws to be subject to the rigors of the
Constitution as otherwise they could have ‘specifically provided for them’
51. So, while J. Gajendragadkar held that personal laws do not fall within the ambit of
“customs & usage” within “laws in force” in Article 13(1), J. Chagla ruled to the
contrary despite reaching at the same conclusion that personal laws are not within the
ambit of Article 13.Hence it's humbly submitted that the High Court held that personal
laws (which had not yet been codified under a statute) were not to be tested on the
touchstone of Part III of the Constitution.
52. This proposition was affirmed by the Supreme Court in Krishna Singh versus Mathura
Ahir. In other words, according to the Supreme Court, religious commandments dealing

with issues such as marriage and divorce could not be challenged for constitutional
violations (until and unless they were codified in secular legislation). In Madhu
Kishwar vs State of Bihar, the Supreme Court held that customary laws would be
subject to Part III (while personal laws remained exempt).
4.2 Secular State Can't Interfere In Religious Affairs Of Petitioners
53. In Maharshi Avadhesh v. Union of India the Supreme Court reiterating this idea stated
that personal laws are the sole subject matter of policy of the State and were not for the
Courts to decide. The Indian Constitution allows individuals the freedom to live by their
religious beliefs and practices as they interpret these. In keeping with this idea of
religious freedom for all, India also adopted a strategy of separating the power of
religion and the power of the State. Secularism refers to this separation of religion from
the State.
54. Indian secularism is different from that of other democratic countries. For example, the
First Amendment of the U.S. Constitution prohibits the legislature from making laws
“respecting an establishment of religion” or that “prohibit the free exercise of
religion”. What is meant by the word ‘establishment’ is that the legislature cannot
declare any religion as the official religion. Nor can they give preference to one religion.
In the U.S.A. the separation between State and religion means that neither the State nor
religion can interfere in the affairs of one another.
55. Indian Constitution intervened in Hindu religious practices in order to abolish
untouchability. In Indian secularism, though the State is not strictly separate from
religion it does maintain a principled distance vis-à-vis religion. This means that any
interference in religion by the State has to be based on the ideals laid out in the
Constitution. These ideals serve as the standard through which we can judge whether
the State is or is not behaving according to secular principles.
56. Governments should not interfere with personal faith and religious practices except
when there is a violation of basic human rights as enshrined in the Indian Constitution.
“The right of the State to legislate on questions relating to marriage cannot be
disputed. Marriage is undoubtedly a social institution an institution in which the
State is vitally interested. Although there may not be universal recognition of the fact,
still a very large volume of opinion in the world today admits that monogamy is a very
desirable and praiseworthy institution.

57. If, therefore, the State of Bombay compel Hindus to become monogamists, it is a
measure of social reform, and if it is a measure of social reform then the State is
empowered to legislate with regard to social reform under Article 25(2)(b)
notwithstanding the fact that it may interfere with the right of a citizen freely to profess,
practise and propagate religion.”
58. It is necessary to observe the direction the court was taking. The Constitution had left
‘religion’ undefined and the court had left its definition to the religious. But that did not
mean that any or all acts would be religious in character.
59. In Shirur Mutt, Mukherjea J accepted the argument that protection of arts 25 and 26
would cover those acts which would constitute an essential part of religion. But this
‘essentiality’ would be determined in the context of the doctrine of the religion. At the
same time, it must be remembered that ‘essentiality’ in Shirur Mutt was accepted in the
context of distinguishing ‘secular’ acts from ‘religious’ acts, and not generally to
determine the protection of freedom of religion. This was reiterated in the subsequent
cases of Ratilal and Devaru.
60. The wall separating ‘state’ and ‘religion’ under the Constitution, clearly, are at
loggerheads. The ‘state’ was not only rendered an outsider, but even its interference
into religious practice was weakened as it was left to the religious denomination to
determine what was ‘religion’ and what was not. What Tripathi (1966b: 183) calls the
‘doctrine of autogeneses of the powers of denominations’ threatened the fate of social
welfare legislation.
61. An expression of this threat was Sardar Syedna Taher Saifuddin Saheb v State of
Bombay30 (Excommunication case). The case dealt with the constitutionality of the
Bombay Prevention of Excommunication Act, 1949, which outlawed the practice of
excom-munication in the small Dawoodi Bohra Muslim community. The obvious
challenge was that the enactment violated the freedom of religion rights under arts 25
and 26. Speaking for the majority, Das Gupta J reiterated that both belief and acts
pursuant to that belief are protected under the Constitution, and that the doctrine of the
faith will determine the essential aspects of religion.
62. The Supreme Court itself in the seminal case of SR Bommai v. Union of India31
rejected, in no unclear terms: The wall of separation between law and the religion with
30
Sardar Syedna Taher Saifuddin Saheb v State of Bombay , MANU/SC/0072/1962
31
SR Bommai v Union of India , MANU/SC/0444/1994 (Bommai)

a wider camouflage to impress control of what may be described as exploitative

parading under grab of religion.
63. After Bommai, the Supreme Court itself has preferred to define secularism in more
religious terms, by placing reliance on the Indian religious traditions, as if religion and
tradition itself lends legitimacy to the concept (see Ram-Janmbhoomi & AS Narayana
Deekshitulu v. State of Andhra Pradesh32). Thus, the court has under-stood religious
values to create a space for secularism in the Indian polity.
64. The nature of the permeability of ‘religion’ by the state is more complex. There is no
doubt that the role of the court in secularism and adjudication of constitutional rights is
a complex one, and one which involves balancing religious rights against the power of
the state to regulate and control, and the religious rights of one group against the
others.33
4.3 State should uphold Minority rights
65. The Indian Constitution recognises religious minorities as well as linguistic
minorities. There are specific provisions in the chapter on fundamental rights that
recognises the right of ‘every religious denomination or any section thereof’ to have
the right to establish and maintain institutions for religious and charitable purposes and
to manage their own affairs in matters of religion.
66. Articles 25 and 26 of the Constitution, which protect both individual religious freedom
as well as the freedom of religious denominations to manage their own affairs in matters
of religion.
32
Ram-Janmbhoomi & AS Narayana Deekshitulu v State of Andhra Pradesh, (1996) 9 SCC 548
33
Lily Thomas v Union of India (2000) 6 SCC 224, Rev Stainnislaus v State of Madhya Pradesh AIR 1977 SC
908, Church of God (Full Gospel) in India v KKRMC Welfare Association AIR 2000 SC 2773, Acharya Maharaj
v State of Gujarat AIR 1974 SC 2098.

ISSUE 5
WHETHER THE COURT CAN BECOME AN ACTIVIST TO UPHOLD
INDIVIDUAL/PERSONAL RIGHTS WHEN THE ELECTED POPULAR
GOVERNMENT IS OPPOSING THE SAME?
5.1 State Should Consider Public Morality And Deference

5.1.1 Constitutional Morality Is A Dangerous Weapon
67. It's humbly submitted that in November 1948, Ambedkar made a speech in the
Constituent Assembly in which he explained why India’s constitution was so long –
why seemingly banal details concerning governmental administration had been
incorporated into it. He said: “Democracy in India is only a top-dressing on an Indian
soil, which is essentially undemocratic.” “It is only where people are saturated with
Constitutional morality such as the one described by Grote the historian”, he added,
“that one can take the risk of omitting from the Constitution details of administration
and leaving it for the Legislature to prescribe them.” In other words, Grote’s
‘constitutional morality’ was an excuse given by Ambedkar to justify why mundane
details had been included in India’s Constitution.
68. Neither Grote nor Ambedkar intended constitutional morality to be used by courts to
test the validity of government action. To them, it was an aspiration – a hope that
citizens would inculcate a love for the rule of law which would make it difficult for the
constitution to be obliterated by the political powers of the day. However, constitutional
morality today essentially means two things. Firstly, it is a reminder that courts must
disregard the morals of the majority while deciding constitutional cases. This is an
unremarkable proposition. In a democracy, it is obviously the unelected court which
has the ability to decide cases without worrying about what voters want.
69. Secondly, constitutional morality requires courts to look at the “spirit”, “soul” or
“conscience” of the Constitution, and not just at the constitution’s words, while
deciding whether the government has done something wrong. In this sense,
constitutional morality is no more or less dangerous than the basic structure doctrine
itself. True, this articulation of constitutional morality is vague and subject to the value
choices of each individual judge.

70. On the other hand, much constitutional doctrine itself is vague. Concepts like
“arbitrariness”, “manifest arbitrariness”, “reasonableness” – these are catchphrases,
by themselves hollow vessels into which meaning is poured by judges who decide cases
according to their own sense of right and wrong. At some level, all constitutional
doctrine is empty – judges’ words inhabit constitutional spaces on the basis of their own
lived experiences. Those who argue that constitutional morality in this formulation is
dangerous must equally argue against doctrines like the basic structure test, the tests of
manifest arbitrariness and reasonableness, indeed against all of the ubiquitous
catchphrases used in constitutional law
5.2 Public Morality / Social Morality
71. The Respondent humbly submits that the purpose of the law was to protect and advance
public morality and public interest. Its submitted that The concept of public morality
cannot be rejected per se as the importance of public morality in shaping the
fundamental rights cannot be rejected. The notion, views and concepts of public
morality has a prime essence many a times in the contours of various fundamental
rights.
72. In Mr. ‘X’ v. Hospital ‘Z’34 court relied on the public morality as a factor to determine
the precedence of one competing fundamental right over another in the case.The prime
distinction between the doctrine of constitutional and public morality is that public
morality is a mere reflection of the consensus of moral and social values of the majority
of populace ( sometimes expressed by legislatures),
73. Throughout India‟s post-independence history, the validity of morals legislation or
state interventions have gone essentially unquestioned. Much of such interventions,
such as standing up for national anthem Shyam Narayan Chouksey v. Union of India,
201635. Or prayer requirements, the regulation of sexuality36, or the regulation on
culinary preferences Hinsa Virodhak Sangh v. Mirzapur Kuresh Jamat & Ors.,36. Or
regulation of minority-community-centric-trade in the name of cow protection Hanif
Quareshi & Others v. State of Bihar37., is based on notions of „public morality‟ and
„majoritarian sentiments‟
34
Mr. ‘X’ v. Hospital ‘Z’ , (1975) 1 SCC 29
35
Shyam Narayan Chouksey v. Union of India, 2016
36
Hinsa Virodhak Sangh v. Mirzapur Kuresh Jamat & Ors , AIR 2008 SC 1892
37
Hanif Quareshi & Others v. State of Bihar , AIR 1958 SC 731

74. The point of delving into these decisions is to highlight the central role that ‘public
morality’ has played in defining the content of fundamental rights. It Follows that
‘public morality’ is not a justification that can be summarily rejected merely on the
ground that it is based on shifting and subjective notions of right and wrong. In our
system of Government, the legislature being an elected body is deemed to represent the
aspirations and values of its constituencies.
75. On the lines of the Chamarbaugwala decision, the Supreme Court in Nashirwar v. State
of M.P.38. Affirmed the power of the State to regulate or even completely prohibit the
sale of liquor. At its root, it was stated, lies “public expediency and public morality”.
This view that trade in obnoxious materials such as liquor, etc. Is res extra commercium
was also approved by the Majority in State of Punjab v. Devans Modern Breweries
Ltd.39
76. In K.A. Abbas v. Union of India40, the Supreme Court was asked to rule on the
constitutionality of pre-censorship of films, etc. In the backdrop of Article 19(1)(a) and
19(2). Article 19(2), it may be noted, specifically lists ‘public order, decency or
morality’ as one of the interests for which reasonable restrictions can be imposed on
the freedom of speech and expression.
77. In the decision of Kenyan High court in Letsweletse Motshidiemang v Attorney
General, High Court of Botswana , As a preliminary point, the judgment stands out
for its clear endorsement of the value of pluralism, and the necessity of respecting
diverse ways of being and life choices, which the Court defined as inclusiveness form,
in a sense, the intellectual scaffolding that allowed it to build and develop its substantive
rights-based arguments. Tellingly, “pluralism” and “inclusiveness” were also two
words that were at the heart of the Delhi High Court’s 2009 judgment in Naz
Foundation; and perhaps equally tellingly, the Kenyan High Court’s judgment did not
have a similar, framing value that would help to contextualise the constitutional
challenge.
78. “public morality” and “deference”, which once held powerful sway over the minds of
judges. Parliament does not therefore ordinarily do anything which a large number of
people oppose. Neither Government nor Parliament can disregard organised public
38
Nashirwar v. State of M.P , (1975) 1 SCC 29
39
State of Punjab v. Devans Modern Breweries Ltd , (2004) 11 SCC 26”
40
K.A. Abbas v. Union of India , (1970) 2 SCC 780. (hereinafter K A Abbas)

opinion in promoting legislation and thus the political supremacy of Parliament, distinct
from its legal omni-competence, as a law making organ, has become more and more
unreal. All legislation is a compromise of conflicting interests. JENNINGS observes,
“Parliament passes many laws which many people do not want. But it never passes
any law which any substantial section of the population violently dislikes”
79. Hence it's humbly submitted that the majority religion opposing Same sex marriages
and State can't implement Uniform Civil code that pave way for legally recognizable,
Hence State should uphold Public morality as Majoritarian religion opposes,
Government refrain and appointed committes to investigate on challenges on
Implementation of Civil code.
5.3 DPSP Is A Policy Matter Of State Which Is Non-enforceable In Courts
80. It's humbly submitted that The framers of the Constitution deliberately placed the
provision for a uniform civil code in the unenforceable “Directive Principles” chapter,
thinking that it was too divisive to be made a fundamental right. The limits to this role
are twofold: first, the Court may not strike down legislation for non-compliance with
the DPSPs; and secondly, the Court may not incorporate the DPSPs to a point that
requires it stepping outside its designated role under classical separation of powers
theory – making policy choices and budgetary allocations (of course, the Court has not
shrunk from this role more generally).
81. There is at least some scope for the DPSPs in an interpretive enquiry (the clause leaves
open what scope, exactly) that does not rise to the level of “enforcement”. According
to Ambedkar himself, the proscription on enforceability was to be as imposing no
obligation upon the State to act upon the Directive Principles – not that the principles
themselves were irrelevant in understanding how the State had (legislatively) acted,
once it did.
82. Ambedkar repudiated the objection that the DPSPs were no more than pious wishes,
arguing that no legal force did not imply no binding force. Part III embodies
civil/political (or “first generation” rights), whereas Part IV enshrines socio-economic,
second-generation guarantees.
83. It is the Supreme Court’s “duty so to discharge its own function of enforcing
fundamental rights as not to obstruct the legislature in its respective function of
applying the directive principles in the making of laws.” Drawing an analogy with the
American Supreme Court’s upholding of President Roosevelt’s extensive New Deal

social welfare legislations (despite no express textual peg in the American Constitution
on which to hang them), Tripathi understood the Directive Principles to be performing
a similar function of mitigating the social evils that spring from a laissez-faire
interpretation of formal equality, the right to property and other such civil rights.
5.4 With Narrow Approach Court Can't Uphold Liberals' Rights While Government
Restraint To Implement.
84. It's humbly submitted that there is a popular school of thought that asks the court to
tread with particular caution when questions of culture are at stake. As far as possible
or so this school of thought holds the court should avoid hearing and deciding such
questions altogether. However, if it must decide, then it should do so on the narrowest
grounds possible.
85. Ideally, its reasoning should be limited to technical points of law, avoid constitutional
questions, decide only the case before it, consciously eschew establishing precedent,
and, above all, refrain from expressing any opinion on the validity of any personal belief
or conviction. The role of the court, in short, is to do everything it can to lower the
stakes, and take a pragmatic, problem-solving approach to the conflict rather than an
ideal-oriented, expansive one.
86. Its also submitted that In the Section 377 hearings, the government stated that it would
not oppose the “reading down” of Section 377 as long as it was confined to same-sex
relations between consenting adults in private. During oral arguments, every time the
petitioners pressed for something more, government counsel urged the court to limit
itself to simple decriminalisation, and nothing more.
87. Similarly, in the Sabarimala hearings, what is at issue is the validity of a piece of
subordinate legislation (specifically, a rule), on the basis of which women of a certain
age are denied access to Sabarimala. While arguments before the court have, of course,
been pitched upon the touchstone of religious freedom and non-discrimination, it is
equally open to the court (if it so desires) to simply hold that the rule exceeds the scope
of the parent law, and is therefore invalid on purely statutory grounds.
88. This would enable the court to avoid reaching any determination on whether Sabarimala
is entitled to invoke the authority of religion (in this case, lord Ayyappa’s vow of
celibacy) in order to deny girls/women between the ages of 10 and 50 the right to
worship at the shrine. Indeed, this is precisely what the narrow approach would
advocate.

ISSUE 6
WHETHER THE CONSTITUTIONAL POWER OF COURT TO FRAME LAWS
HAS LED TO THE SCENARIO WHERE LEGISLATURE HAVE BECOME THE
EXECUTIVE WING OF THE JUDICIARY?
6.1 Legislature Is The Law Making Body

89. The Respondents humbly submits that There is no explicit mention of Judiciary
(Supreme Courts, High Court, or State/District Courts) as a ‘State’ in Article 1241.
However, the organs of the judiciary cannot make rules that are in itself violative of the
Fundamental Rights.
6.1.1 Court Of Justice, Not Court Of Law.
90. In the Decision of Rupa Ashok Hurra v. Ashok Hurra42, SC reaffirmed that
Fundamental Rights cannot be violated by any judicial proceedings and also that
Superior Courts of Justice do not fall under the ambit of Article 12. It's also submitted
that Article 13 of the Indian Constitution mentions, State to not make any law that
violates the provisions under Part III. Implementation of Uniform civil code violates
fundamental rights.
91. It's contended that The Supreme Court judgment cannot be treated as “a sort of
legislation by Parliament” overlooking the binding nature of the law declared by it,
mandating under article 141, every court subordinate to it to accept it. The law declared
by the Supreme Court binds courts in India but it should always be remembered that
the Court does not enact.
6.1.2 Unelected Body
92. It's submitted that the Judiciary being the unelected body, does not enjoy the “General
Will” of the people. Judicial restraint is more apt for such an institution rather than
dictation legislation. Politicians remain “accountable” to the people in at least some
sense, because they depend upon them in order to continue in office after five years.
6.1.3 Against Constitution’S Mandate And Lack Of Expertise
93. It's respectfully submitted that Judicial Review is a basic structure of the Constitution;
however enacting legislation is not. The Constitution prohibits the Court from enforcing
41
42
Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388

a Directive Principle of State Policy. Courts can look into the validity of the law, but
not necessarily make a law. Judiciary lacks both time and resources to enact legislation.
Sometimes practical difficulties of such enactments are not known to the courts.
6.2 Judicial Restraint Theory
94. The Counsels for Respondents humbly submits that There is no dispute on the fact that
the judiciary should also self regulate itself. It should also put some restraints on its
powers, whenever it is required. The Supreme Court in Divisional Manager, Aravali
Golf Course v. Chander Haas43 observed that: “Judges must know their limits and
must not try to run the Government. They must have modesty and humility, and not
behave like Emperors. There is broad separation of powers under the Constitution and
each organ of the State-the legislature, the executive and the judiciary must have respect
for the others and must not encroach into each other’s domains.”
95. A significant aspect of the relationship between the government and the people is the
guaranteeing of certain Fundamental Rights to the people. Modern Constitutions lay a
good deal of emphasis on people’s Fundamental Rights. The underlying idea is that
there are certain basic rights which are inherent in a human being and which no
government should seek to take away either by legislation or by executive action.
96. The judiciary is endowed with the function of protecting these rights and acting as the
guardian thereof. If the legislature passes any law or the executive takes an action, so
as to infringe any of the Fundamental Rights, then the courts may declare such a law or
action as unconstitutional. Some of these basic rights are: freedom of the person,
freedom of speech, right to equality, freedom of conscience and religion, etc.
97. It's most humbly submitted that The Court has cautioned:“It must be remembered that
the wider the amplitude of its power under Art.142, the greater is the need of care for
this Court to see that the power is used with restraint.”
98. Thus, the plenitude of power conferred on the Supreme Court under Art. 142 needs to
be used with care as not to interfere with the performance of their statutory duties and
functions by other authorities in accordance with law. The Apex Court has ruled that
though its power under Art. 142 is broad, it cannot be exercised against a Fundamental
Right44. In Prem Chand45, the Court had suggested that its power under Art. 142(1)
43
Divisional Manager, Aravali Golf Course v. Chander Haas, (2008) 1 S.C.C. 683
44
Prem Chand v. Excise Commissioner, AIR 1963 SC 996
45
ibid

cannot be exercised against a definite statutory provision. In A.R. Antulay v. R.S.

Nayak46, the Supreme Court has observed in relation to Art. 142: however wide and
plenary the language of the article, the directions given by the Court should not be
inconsistent with, repugnant to, or in violation of the specific provisions of any statute".
But, then, there are a number of cases, where the Court has expressed the view that the
scope of Art. 142, which is a constitutional provision, cannot be cut down by a statutory
provision.
6.3 The Judiciary Overreaches Its Constitutional Power.
6.3.1 Abuse Of Power
99. It's humbly submitted that In Prakash Singh v. Union of India47, the petitioners
sought directions against the Union of India and State Governments to constitute
various Commissions and Boards laying down the policies and ensuring that police
perform their duties and functions free from any pressure and also for separation of
investigation work from that of law and order.
100.On May 11, 2016, the Hon’ble Supreme Court of India in Swaraj Abhiyan-(I) v.
Union of India & Ors.48, directed the Ministry of Agriculture in the Union of India to
update and revise the Drought Management Manual. The apex court also directed the
Union government to set up a National Disaster Mitigation Fund within three months.
Nevertheless, Finance Minister, Arun Jaitley expressed the difficulty to create a third
fund outside the National Disaster Response Fund and the State Disaster Response
Fund, keeping in view that the Appropriation Bill is being passed. He also raised
concern about India’s budget-making being subject to judicial review49.
6.3.2 It's Not Judicial Activism, It's Judicial Intervention Which Leads Arbitrariness
101. It's humbly contended that The Supreme Court’s rulings in Supreme Court Advocates-
on-Record-Association v. Union of India50, National Eligibility-cum-Entrance Test
(NEET) i.e., single test for admissions in medical courses, reformation in Board for the
46
A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531:
47
Prakash Singh v. Union of India, (2006) 8 S.C.C. 1.
48
Swaraj Abhiyan-(I) v. Union of India & Ors., (2018) 12 SCC 170
49
Five cases of judicial activism that has put govt. in a spot, Business Standard, BS Web Team, Mumbai, available
at http://www.business-standard.com/article/current-affairs/five-cases-of-judicial-activism-that-has-put-govt-in-
a-spot-116051700587_1.html, accessed on March 14, 2023.
50
Supreme Court Advocates-on-Record-Association v. Union of India, (1993) 4 SCC 441

Control of Cricket in India (BCCI), filling up the judges’ post, etc. have been considered
as the judicial intervention by the government.
102. The Respondents humbly contend that Each organ of our democracy must function
within its own sphere and must not take over what is assigned to the others. Judicial
activism must also function within the limits of the judicial process because the courts
are the only forum for those wronged by administrative excesses and executive
arbitrariness.
6.4 Separation Of Powers Enshrined In Constitution
6.4.1 Powers Vested With Parliament
103. Under Art. 138(2), the Supreme Court shall have such jurisdiction and powers with
respect to any matter as the Government of India and any State Government may by
special agreement confer, if Parliament by law provides for the exercise of such
jurisdiction and powers by the Supreme Court.
104. Under Art. 139, Parliament may by law confer on the Supreme Court power to issue
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warrants and certiorari, or any of them, for any purposes other than
those mentioned in Art. 32(2). Under Art. 32(2), the Supreme Court has power to issue
these writs for purpose of enforcement of Fundamental Rights. Under Art. 139, power
to issue writs may be conferred on the Supreme Court for purposes other than
enforcement of Fundamental Rights.
105. Under Art. 140, Parliament may by law make provisions for conferring upon the
Supreme Court such supplemental powers not inconsistent with any provision of the
Constitution as may appear to be necessary or desirable for the purpose of enabling the
Court more effectively to exercise the jurisdiction conferred on the Court by or under
the Constitution.
6.4.3 Additional Jurisdiction Of Parliament
106. The Supreme Court has ruled in In re. Special Courts Bill, 1973, that as regards
conferring additional jurisdiction on the Supreme Court provisions from Arts. 124 to
147 of the Constitution are exhaustive and no more jurisdiction can be conferred on the
Supreme Court outside those provisions. Parliament can con fer additional jurisdiction
on the Supreme Court while exercising its legislative power under Arts. 246(1) and (2).
Thus, Parliament can confer jurisdiction on the Supreme Court beyond what Arts.

133(3), 134(2), 138(1), 138(2), 139 and 140 provide. These provisions are to be read in
harmony and conjunction with, and not in derogation of other constitutional provisions.
Thus, the Court has ruled:
107. "The Parliament, therefore, has the competence to pass laws in respect of matters
enumerated in Lists I and III notwithstanding the fact that by such laws, the jurisdiction
of Supreme Court is enlarged in a manner not contemplated by or beyond what is
contemplated by the articles in Chapter IV, Part V "51
108. For example, preventive detention falls under entry 3 in List III. Parliament is
competent while legislating on that topic under Art. 246(2) to provide under Art. 246(1)
read with entry 77, List I, that an appeal shall lie to the Supreme Court from an order
of detention passed under a preventive detention law.
6.4.4 State Should Seperate Judiciary From Executive
109. It's most humbly submitted that the Article 50 of the Constitution contains The
Directive Principle envisages separation of judiciary from executive in the public
Services of the State. While there may be no strict water tight separation at least as
between the Legislature and the executive, the judiciary is separated from Executive in
any Public services
110. Hence Court can't issue guideline or as an Activist Judiciary is not a competent
authority to Issue order to legislature by make it push and compel in Law making
process as Independence of Judiciary should be protected by the sole duty of the State
enshrined as Doctrine of Seperation of power in Article 50.
111. Hence it's most humbly contended that Uniform civil code Implementation process is
solemnly policy matter of state and the process is ongoing in Parliament as Pending
Bill, If court overreach its jurisdiction, It also violates Parliamentary privileges.
51
AIR 1979 SC at 500.

PRAYER
Wherefore, in light of issues raised, arguments advanced and authorities cited, the Respondent
humbly pray that this Supreme Court of Dholakpur may be pleased to:
a) Dismiss the Petitions.
And/or
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience
For which the counsel for the Respondent shall be duty bound forever pray.
****
Sd/-
(Counsel for the Respondent)

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National Level Moot Court Competetion-2023 organized by Directorate Of Legal Studies &

Chennai Dr. Ambedkar Govt Law College Pattaraiperumbudur

TEAM CODE: PENGUIN

BEFORE THE HON’BLE SUPREME COURT OF DHOLAKPUR

PUBLIC INTEREST LITIGATION (PIL) NO……./2023

IMPLEMENTATION OF UNIFORM CIVIL CODE IN THE COUNTRY OF

IN THE MATTER BETWEEN

1. BHEEM AND KHALIYA

2. ALL INDIA MUSLIM PERSONAL

MEMORANDUM ON BEHALF OF THE RESPONDENT

Memorandum on behalf of the RESPONDENT 1

2. Whether is it Feasible for Implementing Uniform Civil Code in a Multi- Cultural

Memorandum on behalf of the RESPONDENT 2

5. Whether the Court can become an activist to uphold individual/personal rights

Memorandum on behalf of the RESPONDENT 3

S.NO ABBREVIATIONS EXPANSIONS

Memorandum on behalf of the RESPONDENT 4

S.NO CASES REFERRED PG.NO

Memorandum on behalf of the RESPONDENT 5

20. Aruna Roy v. Union of India, (2002) & SSC 368 16

Memorandum on behalf of the RESPONDENT 6

40. Divisional Manager, Aravali Golf Course v. Chander Haas, (2008) 36

1. Universal Declaration Of Human Rights, 1948

Memorandum on behalf of the RESPONDENT 7

Article 32 in The Constitution of Dholakpur:

32. Remedies for enforcement of rights conferred by this Part

Memorandum on behalf of the RESPONDENT 8

PUBLIC INTEREST LITIGATION – I

PUBLIC INTEREST LITIGATION – II

Memorandum on behalf of the RESPONDENT 9

Memorandum on behalf of the RESPONDENT 10

2. Whether is it Feasible for Implementing Uniform Civil Code in A Multi- Cultural

Memorandum on behalf of the RESPONDENT 11

5. Whether the Court can become an activist to uphold individual/personal rights

Memorandum on behalf of the RESPONDENT 12

Memorandum on behalf of the RESPONDENT 13

1.2 That the alternative remedy was not exhausted:

1.3 That the Impleading petition is Maintainable:

Memorandum on behalf of the RESPONDENT 14

Memorandum on behalf of the RESPONDENT 15

2.1 The implementation of UCC go against the Concept of Secularism:

Memorandum on behalf of the RESPONDENT 16

2.2 The implementation of UCC is practically difficult:

Memorandum on behalf of the RESPONDENT 17

Memorandum on behalf of the RESPONDENT 18

Memorandum on behalf of the RESPONDENT 19

Memorandum on behalf of the RESPONDENT 20

Memorandum on behalf of the RESPONDENT 21

Memorandum on behalf of the RESPONDENT 22

Memorandum on behalf of the RESPONDENT 23

3.3 That the UCC is not needed in the present scenario:

Memorandum on behalf of the RESPONDENT 24

Memorandum on behalf of the RESPONDENT 25

4.1 State Has Limitations In Interference With Personal Laws

4.1.1 Personal Law Can't Comes Under The Purview Of Article 13

Memorandum on behalf of the RESPONDENT 26

Memorandum on behalf of the RESPONDENT 27

Memorandum on behalf of the RESPONDENT 28

a wider camouflage to impress control of what may be described as exploitative

Memorandum on behalf of the RESPONDENT 29

5.1 State Should Consider Public Morality And Deference

Memorandum on behalf of the RESPONDENT 30

Memorandum on behalf of the RESPONDENT 31