Memorial For The Appellants-Team Code L PDF

TEAM CODE- L
25TH M. C. CHAGLA MEMORIAL GOVERNMENT LAW COLLEGE NATIONAL MOOT

COURT COMPETITION, 2018
BEFORE THE HON’BLE SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION NO. ****/2018
UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950
IN THE MATTER OF
HINDU SEVA SANGH AND ORS …APPELLANTS
VERSUS
THE UNION OF INDIA …RESPONDENT
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS
-MEMORIAL ON BEHALF OF THE APPELLANTS-

-INDEX-
INDEX
TABLE OF ABBREVIATIONS .......................................................................................................I
INDEX OF AUTHORITIES ......................................................................................................... III
FOREIGN JUDGEMENTS .......................................................................................................... III
SUPREME COURT JUDGEMENTS ............................................................................................. III
HIGH COURT CASES .............................................................................................................. VI
BOOKS REFERRED ................................................................................................................ VII
INTERNATIONAL CONVENTIONS AND TREATIES ................................................................. VIII
REPORTS ............................................................................................................................. VIII
CONSTITUENT ASSEMBLY DEBATES...................................................................................... IX
RULES REFERRED .................................................................................................................. IX
STATEMENT OF JURISDICTION .................................................................................................X
STATEMENT OF FACTS ............................................................................................................ XI
SUMMARY OF ARGUMENTS .................................................................................................. XIII
ARGUMENTS ADVANCED ........................................................................................................... 1
ISSUE 1: THAT THE PRESENT SPECIAL LEAVE PETITION FILED BEFORE THE HON’BLE
COURT ARE MAINTAINABLE IN LAW ................................................................................... 1
1.1 THE SPECIAL LEAVE PETITIONS FILED BY THE RELIGIOUS ASSOCIATIONS ARE
MAINTAINABLE BEFORE THE SUPREME COURT UNDER ARTICLE 136 .................................... 1
1.1.1 THE MATTER INVOLVES DETERMINATION OF A SUBSTANTIAL QUESTION OF LAW .. 1
1.1.2 THE COURT HAS THE POWER TO STRIKE DOWN A LAW IN CONTRAVENTION OF
PART III OF THE CONSTITUTION OF INDIA .......................................................................... 2
1.1.3 THE PRINCIPLE OF LOCUS STANDI IS VALIDATED ...................................................... 2
1.1.3.1 THE BAR OF RES JUDICATA APPLIES ON THE DECISION OF THE HIGH COURT ....... 3

-INDEX-
1.1.3.2 THE MATTER FALLS OUTSIDE THE PURVIEW OF LETTERS PATENT APPEAL ........... 3
1.2 THE SPECIAL LEAVE PETITION FILED BY THE STATE OF MADINA IS MAINTAINABLE
BEFORE THE HON’BLE SUPREME COURT............................................................................. 3
1.2.1 THE TREATY OBLIGATION DOES NOT REQUIRE TO BE IMPLEMENTED THROUGH AN
ACT OF LEGISLATION .......................................................................................................... 4
1.2.2 ARTICLE 51 OF THE CONSTITUTION PROVIDES OBLIGATION TO FOSTER RESPECT
FOR INTERNATIONAL TREATIES ......................................................................................... 4
1.2.3 THE ALTERNATIVE REMEDY AVAILABLE TO STATE OF MADINA WAS NOT
EFFICACIOUS ....................................................................................................................... 5
1.2.4 THE PRINCIPLE OF LOCUS STANDI IS VALIDATED ...................................................... 6
1.2.4.1 THERE IS A VIOLATION OF AN ESSENTIAL PROVISION OF THE TREATY ................. 6
1.2.4.2 ENFORCEMENT OF THE BILATERAL TREATY IN THE MUNICIPAL COURT ................ 6
ISSUE II: THAT THE MANNER IN WHICH THE UCC WAS IMPLEMENTED VIOLATED THE
TREATY OBLIGATIONS AND THUS LED TO A BREACH........................................................ 7
2.1 THERE HAS BEEN A MATERIAL BREACH OF THE TREATY OBLIGATION BY THE UNION
OF INDIA.............................................................................................................................. 8
2.2 THE UNION OF INDIA HAS ACTED IN VIOLATION OF THE PRINCIPLE OF PACTA SUNT
SERVANDA AND ARTICLE 27 OF VCLT. ............................................................................. 10
2.3 THE UNION OF INDIA HAS NEGATED THE IDEA OF RIGHTS VIS-À-VIS CITIZENSHIP .. 11
ISSUE III: THAT THE MANNER IN WHICH THE UNIFORM CIVIL CODE WAS
IMPLEMENTED IS ARBITRARY AND UNCONSTITUTIONAL ................................................. 13
3.1 THERE IS A VIOLATION OF FUNDAMENTAL RIGHTS .................................................... 13
3.1.1 THE UNIFORM CIVIL CODE VIOLATES THE RIGHT TO EQUALITY AS IT IS ARBITRARY
.......................................................................................................................................... 13

-INDEX-
3.1.1.1. THE IMPUGNED REPEALS ARE WITHIN THE AMBIT OF ARTICLE 13 AND 372 AND
CAN BE JUDICIALLY REVIEWED. ....................................................................................... 14
3.1.1.2 SECULARISM IN INDIA RECOGNIZES RELIGION ...................................................... 14
3.1.1.3. ARTICLES 25 AND 26 GUARANTEES RIGHT TO FREEDOM OF RELIGION AND THE
IMPLEMENTATION OF UNIFORM CIVIL CODE VIOLATES THE RIGHT. ................................ 15
3.1.1.4 THE IDEA OF PLURALISM UNDER CONSTITUTION PRESERVES RELIGIOUS
DIVERSITY ......................................................................................................................... 16
3.1.1.5 UNIFORMITY MEANS CONSTITUTIONAL UNIFORMITY AND CHANGES HAVE TO BE
BROUGHT WITHIN THE INDEPENDENT SCOPE OF EACH RELIGION. ................................... 17
3.1.1.6 THERE WAS INFRINGEMENT OF THE DOCTRINE OF LEGITIMATE EXPECTATION ... 18
3.1.1.7 THE IMPUGNED REPEALS AND AMENDMENTS ARE ARBITRARY ........................... 19
3.1.2. THE UNIFORM CIVIL CODE IS IN VIOLATION OF ARTICLES 19 AND 21 OF THE
CONSTITUTION OF INDIA ................................................................................................... 22
3.1.2.1 THERE IS VIOLATION OF ARTICLE 21 OF THE CONSTITUTION............................... 22
3.1.2.2 THERE IS VIOLATION OF EXPRESSION AS ENVISAGED UNDER ARTICLE 19 OF
CONSTITUTION .................................................................................................................. 23
3.2. THERE IS INFRINGEMENT OF THE PRINCIPLES OF DEMOCRACY ................................. 24
PRAYER ................................................................................................................................ XXVI

-TABLE OF ABBREVIATIONS-
TABLE OF ABBREVIATIONS
AIR All India Reporter
ALD Andhra Legal Decision
Art. Article
Cr.L.J. Criminal Law Journal
Cr.P.C. Code of Criminal Procedure, 1973
CTC Current Tamil Nadu Cases
DMC Divorce and Matrimonial Cases
Ed. Edition
GLR Gujarat Law reporter
HC High Court
Hon’ble Honorable
ICCPR International Covenant on Civil and Political Rights
No. Number
Ors. Others
PIL Public Interest Litigation
S.C.R. Supreme Court Reports
SCC Supreme Court Cases
TLNJ Tamil Nadu Law Notes Journal
U.O.I Union of India
U.P. Uttar Pradesh
UDHR Universal Declaration of Human Rights
v. Versus
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E |I

-TABLE OF ABBREVIATIONS-
Vol. Volume
SLP Special Leave Petition
SMA Special Marriage Act
ISA Indian Succession Act
CTC Current Tamil Nadu Cases
GLH Gujarat Law Herald
MPLJ Madhya Pradesh Law Journal
Ed. Editor
Q.B. Queen’s Bench
ELT Excise Law Times
PCIJ Permanent Court of International Justice
ICJ International Court of Justice
UN United Nations
KLT Kerala Law Times
ILR Indian Law Reports
Bom. Bombay
EU European Union
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | II

-INDEX OF AUTHORITIES-
INDEX OF AUTHORITIES
FOREIGN JUDGEMENTS
1. Akileh v. Elchahal, 2d 246, (Fla. Dist. Ct. App. 1996)...................................................... 23
2. Coast Lines Ltd. v. Hudig & Veder Charterin NV, (1972) 2 Q.B. 34 ............................... 10
3. Denmark v. Norway, 1933 P.C.I.J. Ser.A/B, No. 53 ......................................................... 11
4. Qatar v. Bahrain, [1999] ICJ Rep 3 ................................................................................... 12
5. Whitworth Street Estates (Manchester) Ltd. v. James Miller and Partners Ltd., (1970)
A.C. 583 ............................................................................................................................... 9
SUPREME COURT JUDGEMENTS
1. A.V. Venkateswaran v. R.S Wadhwani, AIR 1961 SC 1506 ............................................ 16
2. Air India Statutory Corporation v. United Labor Union, (1997) 9 SCC 377 .................... 22
3. Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 ................................................ 29
4. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 ............................................... 22
5. Bharat Aluminium Company v. Kaiser Aluminium, (2012) 9 SCC 552 ........................... 18
6. Bhavesh Jayanti Lakhani v. State of Maharashtra & Ors., (2009) 9 SCC 551 .................. 15
7. Bijoe Emmanuel & Ors. v. State of Kerala & Ors., (1986) 3 SCC 615............................. 35
8. Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722 SC 1996 ...................................... 17
9. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami, (1996) 8 SCC 525 ................ 26
10. Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC
156...................................................................................................................................... 22
11. CWT v. Abdul Hussain Muhammad Ali, (1988) 3 SCC 562 ............................................ 20
12. Daryao v. State of Uttar Pradesh, AIR 1961 SC 1547 ....................................................... 14
13. Dhulabhai v. State of M.adhya Pradesh, (1968) 3 SCR 662.............................................. 18
14. Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., AIR 1954 SC 520 ................... 13
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15. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 ..................................................... 25
16. Enercon (India) Ltd. & Ors. v. Enercon Gmbh & Anr, ( 2014) 5 SCC 1 .......................... 18
17. Food Corporation of India v. M/s Kamdhenu Cattlefield Industries, (1993) 1 SCC 71 .... 30
18. Gulabh Chand Parikh v. State of Gujarat, AIR 1965 SC 1153 .......................................... 14
19. Gulam Abbas & Ors. v. State of Uttar Pradesh & Ors, (1982) 1 SCC 71 ......................... 14
20. Guruvayar Devaswom Managing Committee v. Pritish Nandy & Anr, 1987 CriLJ 192 . 29
21. Harbans Lal Sahnia v. Indian Oil Corporation Ltd, (2003) 2 SCC 107............................. 16
22. I.R. Coelho v. Union of India, (2007) 2 SCC 1 ................................................................. 13
23. Indira Gandhi v. Raj Narain, (1975) Supp SCC 1 ............................................................. 13
24. Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214 ....... 12
25. Jolly George Varghese v. The Bank of Cochin, AIR 1980 SC 470................................... 15
26. Justice K.S. Puttaswamy & Ors. v. Union of India and Ors, (2018) 1 SCC 809 ........ 34, 35
27. Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225 ......................................... 13, 25
28. Khursheed Ahmad Khan v. State Of Uttar Pradesh & Ors, (2015) 8 SCC 439................. 29
29. Kuldeep Nayar v. Union of India, AIR 2006 SC 3127 ...................................................... 13
30. Lata Singh v. State of Uttar Pradesh & Ors, (2006) 5 SCC 475 ...................................... 32
31. Lily Thomas v. Union of India, (2013) 7 SCC 653 ........................................................... 13
32. Maganbhai Ishwarbhai Patel v. Union of India & Anr, 1969 (3) SCR 254 ....................... 15
33. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 ........................................... 22, 27
34. Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036 ................................ 12
35. National thermal Power Corporation v. Singer Company, AIR 1993 SC 998 .................. 18
36. P. Rathinam v. Union of India, (1993) 1 SCC 645 ............................................................ 33
37. Pannalal Bansilal Pitti v. State Of Andhra Pradesh, 1996 SCC (2) 498 ............................ 30
38. People’s Union for Civil Liberties v. Union of India, (1997)1SCC 301 ........................... 19
39. Ram Jethmalani v. Union of India, (2011) 8 SCC 1 .......................................................... 19
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | IV

40. Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 25
41. Ramesh v. Gendalal Motilal, AIR 1966 SC 1445 .............................................................. 14
42. Ratilala Panachand Gandhi v. State of Bombay, (1954) SCR 1055 .................................. 26
43. S. Rangarajan v. P. Jagjevan Ram, (1989) 2 SCC 574 ...................................................... 34
44. Sajjan Singh v. State of Rajasthan, 1965 SCR (1) 933 ...................................................... 22
45. Sant Ram Sharma v. Labh Singh, (1964) 7 SCR 756 ........................................................ 28
46. Sarla Mudgal v. Union of India, (1995) 3 SCC 635 .......................................................... 26
47. Secretary, Haryana State Electricity Board v Suresh, AIR 1999 SC 1160 ........................ 30
48. Secretary, Ministry of Information and Broadcasting, Government of India & Ors. v.
Cricket Association of Bengal & Anr., (1995) 2 SCC 161 ................................................ 35
49. Seshammal & Other v. State of Tamil Nadu, (1972) 2 SCC 11 ........................................ 26
50. Shafin Jahan v. Asokan K.M. & Others, Criminal Appeal No. 366/2018 Arising out of
S.L.P. (Crl.) No. 5777/2017 ............................................................................................... 34
51. Shayara Bano v. Union of India (2017) 9 SCC 1 ........................................................ 23, 28
52. Shin–etsu Chemical Co Ltd v. Aksh Optifibre Ltd, (2005) 7 SCC 234 ............................ 17
53. Shri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459 .............................. 29
54. Shyam Sunder Prasad Singh & Ors. v. State Of Bihar & Ors., 1981 SCR (1) 1 ............... 32
55. Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd, AIR
1962 SC 1314..................................................................................................................... 12
56. State of Maharashtra v. M/s. National Construction Company, Bombay (1996) 1 SCC 786
............................................................................................................................................ 14
57. State of Rajasthan v. Union of India, (1977) 3 SCC 592................................................... 13
58. State of West Bengal v. Kesoram Industries Ltd., (2004) 10 SCC 201 ............................. 15
59. Supreme Court Advocates-on- Record Association and Anr. v. Union of India, (1990) 2
SCR 433 ............................................................................................................................. 35
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60. Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193....................................... 14
61. Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496 .................. 23
62. T.M.A Pai Foundation v. State of Karnataka, (1995) 4 SCC 1 ......................................... 25
63. Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 ............................................ 15
HIGH COURT CASES
1. Abdur Rahim v. Padma, AIR 1982 Bom 341 .................................................................... 25
2. Abdurahiman v. Khairunnessa, ILR 2010 (1) Kerala 830 ................................................. 23
3. Ajmal Khan & Ors. v. Election Commission of India & Ors, 2017(3) ALJ 261 .............. 24
4. Atulya Kumar De v. Director, AIR 1953 Cal 548 ............................................................... 7
5. AWAS Ireland v. Directorate General of Civil Aviation, SCC OnLine Del 8177 ............ 11
6. Buffatan Bibi & Anr. v. Sheikh Abdul, AIR 1950 Cal 304 ............................................... 23
7. Collr. Of Custom v. Narayani Trading Concern (Pvt.), 1997 (89) ELT 668 ..................... 10
8. Dinesh Gurjar v. Union of India, 1999 (2) MPLJ 649 ......................................................... 7
9. Director of Income Tax v. New Skies Satellite BC & Ors., (2016) 382 ITR 114 ............. 14
10. Dravidar Kazhakam, Represented by the General Secretary, K. Veeramani v. The
Chairman, United India Insurance Company Limited, (1992) 1 MLJ 530 ........................ 17
11. Ka Steldoris Syiemlieh v. U. Skipland Sanglyne & Anr, AIR 1986 Gau 24.................... 20
12. Lily Thomas v. Union of India, (2000) 6 SCC 224. .......................................................... 20
13. Novartis AG v. Union of India, (2007) 4 MLJ1153 .......................................................... 11
14. Rabindra N. Maitra v. Life Insurance Corporation of India, AIR 1964 Cal 141 ............... 10
15. Rahul Verma v. State of Rajasthan & Ors, AIR 2015 Raj 173 .......................................... 23
16. Revaben & Ors. v. Vinubhai Purshottambhai Patel & Ors, 2013 (1) GLH 440 .............. 6, 8
17. Sm. Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244 ......................... 23
18. State of Bombay v. Narsu Appa Mali, AIR 1952 Bom 84 ................................................ 14
19. T. Rajkumar v. Union of India, 2016 (3) CTC 681 ............................................................. 7
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | VI

20. Tarun Bhargava v. State of Haryana, 2003 (3) KLT 397 .................................................. 13
21. Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, (1901) ILR 28 Cal 751 ............... 23
22. Union of India v. Vodafone Group Plc United Kingdom & Ors., 2018 OnLine Del 8842
............................................................................................................................................ 10
CONVENTIONS AND TREATISES
1. Narendra Kandoliya, A paradigm shift in the role of domestic courts in implementing
International treaty provisions: an Indian perspective ....................................................... 4
BOOKS REFERRED
1. Kumud Desai, Indian Law of Marriage & Divorce (LexisNexis Butterworths Wadhwa
Nagpur, 8th ed. 2011)…………………………………………………………………….25
2. Aloo J. Dastur, Secularism And National Integration (Law, Society and Education, De.
P.B. Gajendrakar Felicitation Volume, Somaiya Publications Pvt. Ltd. Bombay 1973) .. 19
3. Anat Scolnicov, The Right to Religious Freedom in International Law: Between Group
Rights and Individual Rights (Routledge, 2012) ............................................................... 12
4. Cheshire and Fifoot’s Law of Contract (10th ed.) ............................................................. 12
5. Christopher Pearson, The Welfare State Reader (Francis G. Castles, 1st ed. 2006) .......... 15
6. 3 D.D. Basu, Commentary on the Constitution of India, (Lexis Nexis Butterworths
Wadhwa, Nagpur, 8th ed., 2008) ....................................................................................... 13
7. Dr. M.P Raju, Uniform Civil Code: A Mirage (Justice & Peace Commission, Delhi and
Society for Media & Value Education, Delhi 2003).......................................................... 19
8. H.M Seervai, Constitutional Law of India (Universal Law Publishing Co., 4th ed. 2010) 20
9. I.A. Shearer, “Starke’s International Law” (Oxford University Press, 11th ed. 2009) ........ 7
10. Ibohal Singh, Constitutions, Constitutional Interpretation and Human Rights (Indian and
Foreign) (LexisNexis Butterworths Wadhwa 1st ed. 2009). ............................................. 26
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | VII

11. Jagadish Swarup & Dr. L.M. Singhvi, Constitution of India 407-408 (Thomson Reuters,
3rd ed. 2013) ....................................................................................................................... 16
12. Paul Craig & Grainne De Burca, EU Law: Text, Cases and Materials 32 (Oxford
University Press 4th ed. 2007) ............................................................................................ 22
13. Radhakrishnan, Secularism in India 127 (V.K.Sinha 1968) .............................................. 17
14. Robert Kolb, The Law of Treaties: An Introduction 128 (Edward Elgar Publishing, 1st ed.
2017) .................................................................................................................................. 11
15. Shimon Shetreet & Hiram E. Chodosh, Uniform Civil Code for India 29 (Oxford
University Press 1st ed. 2015). ........................................................................................... 22
16. Susanne Hoeber Rudolph & Lloyd I. Rudolph, Living With Difference in India: Legal
Pluralism and Legal Universalism in Historical Context, in Religion And Personal Law
In Secular India – A Call To Judgement, (Gerald James Larson ed., 2001) ..................... 18
INTERNATIONAL CONVENTIONS AND TREATIES
1. International Covenant on Civil and Political Rights, 1966. Art. 18,Dec. 16, 1966. 999
UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967)………………….33
2. G.A. Res. 217A (III), Universal Declaration of Human Rights, Art. 18, Dec. 10, 1948 ... 20
3. The Vienna Convention on the Law of Treaties, Art. 27, May 23, 1969, 1155 U.N.T.S.
331, 8 II.L.M. 679 .............................................................................................................. 22
REPORTS
1. Law Commission of India, Laws of Civil Marriages in India – A Proposal to resolve
Certain Conflicts (October 2008, Report No. 212)............................................................ 30
2. Report of the International Law Commission on the Work of Its Eighteenth Session, U.N.
Doc. A/6309/Rev.1 (1966), reprinted in [1966] 2 Y.B. INT'L L. COMM'N 172, 255, U.N.
Doc. A/CN.4/SER.A/1966/Add.1 ...................................................................................... 21
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | VIII

3. Report of the National Commission for Religious and Linguistic Minorities, Ministry of
Minority Affairs (2007) ..................................................................................................... 26
CONSTITUENT ASSEMBLY DEBATES
1. VII Constituent Assembly Debates Official Report, Book no. 2 ....................................... 29
RULES REFERRED
1. The Bombay High Court (Original Side) Rules, 1980 ...................................................... 14
STATUTES
1. The Special Marriage Act 1954. .............................................................................. 19,20,21
2. The Code of Civil Procedure, 1908 ..................................................................................... 3
3. The Constitution of India, 1950 ................................................................... 4,6,14,15,22, 24
4. The Indian Succession Act, 1954....................................................................................... 21
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | IX

-STATEMENT OF JURISDICTION-
STATEMENT OF JURISDICTION
In accordance with Article 136 of the Constitution of India read with Order XXII Rule 8
of the Supreme Court Rules, 2013, the Appellants have approached the Hon’ble Supreme
Court of India.
Article 136 of the Constitution of India, 1950
(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to armed
forces.
Order XXII Rule 8 of the Supreme Court Rules, 2013
“On the granting of the special leave, the petition for special leave shall be treated as a
petition of appeal and shall be registered and numbered as such. “
The Appellants have approached this Hon’ble Court for adjudicating the matter brought
forth in the Court of Law.
All of which is most respectfully submitted
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E |X

-STATEMENT OF FACTS-
STATEMENT OF FACTS
COMPOSITION OF THE WORLD AND EXPRESS UNDERSTANDING BETWEEN THE
COUNTRIES
World consists of five countries – India, being a secular country, has different Personal Laws
for different religions and non-religious communities. A Uniform Civil Code is followed by
another country called Atheos. Other three countries are Madina, Aliyana and Abigail having
their separate laws, being Sunni, Shia and Christian Personal Laws respectively. There is an
expressed understanding in writing among the five nations that religious division between
them would not be altered unless mutually agreed in writing.
BILATERAL TREATY BETWEEN MADINA AND INDIA
Since, Madina was a populous country and India was a technologically backward country,
they entered into a bilateral treaty wherein a limited number of Madina citizens would
become Indian citizens and in exchange Madina would share its extremely advanced
technological know-how with India. The treaty had a clause providing protection of the
religious right of the Sunni Muslims from Madina, who would gain Indian citizenship. The
bilateral treaty has an arbitration clause in relation to all disputes and differences, and a
liquidated damages clause for breaches.
MAJORITY GOVERNMENT AND THE CONTEMPLATION OF UNIFORM CIVIL CODE CREATED
UPROAR
The Chief Minister of Maharashtra won the elections of India and his political party had
majority in both the Houses of Parliament. The Government stuck to his core policies and
contemplated the passing of the Uniform Civil Code which was protested by the opposition
party and members of registered NGOs of Hindu, Muslim, Parsi and Christian religion. The
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | XI

-STATEMENT OF FACTS-
Government had complete control of both the Houses of Parliament and a strong opposition
to the Code.
QUESTIONNAIRE
The political party circulated a questionnaire so as to begin a healthy conversation about the
viability of the Code and address social injustice rather than plurality of laws. The Law
Commission accepted the views of the people within 45 days and stated that subsequent
interactions will follow. 70% citizens of India demanded an optional Uniform Civil Code
which did not infringe an individual’s right to practice his religion. They believed that
sensitizing the society was the need of the hour and legal provisions would not bring any
change.
AMENDMENTS AND REPEALS IN FURTHERANCE OF UCC
However, UCC came to be incorporated in India by means of repeal of Personal Laws of
different religions in India and amendments of Indian Succession Act, 1925 and Special
Marriage Act, 1954.
SLP IN SUPREME COURT
Hindu Seva Sangh, Muslim Jamia, India Christian Association, Parsi Board of Bombay and
State of Madina filed writ petitions contesting that the manner in which UCC was adopted is
unconstitutional and arbitrary and the same did not take into account their faith and beliefs.
The Government of Madina believed that there was a breach of the bilateral treaty and claim
was set up for liquidated damages against India.
The petitions got dismissed by the Bombay High Court. Thereafter, the parties approached
Supreme Court of India which admitted the SLP.
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | XII

-SUMMARY OF ARGUMENTS-
SUMMARY OF ARGUMENTS
ISSUE I: THAT THE PRESENT SPECIAL LEAVE PETITION FILED BEFORE THE HON’BLE
COURT ARE MAINTAINABLE IN LAW
It is humbly submitted that the present SLP filed by the religious associations are
maintainable in law as firstly the matter involves determination of a substantial question of
Law. Secondly, the Court has the power to strike down a law in contravention of Part III
under Article 13(2), and lastly the Principle of Locus Standi is also validated. Further, the
SLP filed by the state of Madina is maintainable as firstly the Treaty obligation does not
require to be implemented through an Act of Legislation. Secondly, Article 51 of the
Constitution provides obligation upon the Union of India to foster respect for Treaty
obligations. Thirdly, the alternative remedy available was not efficacious and lastly the
principle of Locus Standi is validated.
ISSUE II: THAT THE MANNER IN WHICH THE UCC WAS IMPLEMENTED VIOLATED THE
TREATY OBLIGATIONS AND THUS LED TO A BREACH
It is humbly submitted that in the present matter the respondents have breached the Treaty as
firstly there has been a material breach of the Treaty as per the terms of the VCLT, 1969.
Secondly the Union of India has violated the principle of Pacta sunt Servanda along with
Article 27, Vienna convention on the Law of Treaties, 1969 and lastly the respondents have
negated the Idea of Rights that are associated by virtue of Citizenship.
ISSUE III: THAT THE MANNER IN WHICH THE UNIFORM CIVIL CODE WAS IMPLEMENTED
IS ARBITRARY AND UNCONSTITUTIONAL
It is humbly submitted before this Hon’ble Court that the implementation of the Uniform
Civil Code is arbitrary and unconstitutional. Firstly, it was in violation of the Fundamental
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | XIII

-SUMMARY OF ARGUMENTS-
Rights. The Uniform Civil Code violates the Right to Equality as it is arbitrary. Further, since
the impugned repeals come within the ambit of Article 13 of the Constitution such an act was
uncalled for. The Constitution of India recognizes religion in India under the idea of
secularism, under Articles 25 and 26 and under the idea of pluralism and hence, repealing
Personal Laws goes against the principle of secularism. Uniformity could be attained through
Constitutional Uniformity and changes have to be brought within the independent scope of
each Religion. Further, there was a breach of the Doctrine of Legitimate Expectation and the
impugned repeals of the Personal Laws and amendments made are arbitrary. The Code is in
contravention with the Right to Free Speech and Expression and Right to Life and Liberty.
Secondly, there has been infringement on the principles of democracy.
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | XIV

-ARGUMENTS ADVANCED-
ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE PRESENT SPECIAL LEAVE PETITION FILED BEFORE THE
HON’BLE COURT ARE MAINTAINABLE IN LAW
1.1 THE SPECIAL LEAVE PETITIONS FILED BY THE RELIGIOUS ASSOCIATIONS ARE
MAINTAINABLE BEFORE THE SUPREME COURT UNDER ARTICLE 136
(¶1) It is humbly submitted that the present Special Leave Petitions are maintainable before
the Hon’ble Supreme Court as the matter involves determination of a substantial question of
law [1.1.1], the Court has the power to strike down a law in contravention of Part III under
Article 13(2) [1.1.2], and the Principle of Locus Standi is also validated [1.1.3].
1.1.1 THE MATTER INVOLVES DETERMINATION OF A SUBSTANTIAL QUESTION OF
LAW
(¶2) The Hon’ble Supreme Court has held in a plethora of cases that when a case concerns a
substantial question of law, its jurisdiction under Article 136 can be invoked.1 In the case
before us, due to the repeal of all the Personal Laws 2 , the religious rights of members
belonging to diverse communities in India are directly at stake here. Therefore, the matter
concerned is of paramount importance from the point of view of public interest in India.
(¶3) The expression “Substantial Question of Law” has been interpreted through the course of
various judicial pronouncements. In Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning &
Manufacturing Co. Ltd.3, this Court held that the proper test for determining the Substantial
Question of Law is to check whether the question substantially affects the rights of the parties
1
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036 (India); see also Janshed Hormusji Wadia
v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214 (India).
2
Moot Proposition, ¶14.
3
Sir Chunilal Mehta & Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd, AIR 1962 SC 1314 (India).
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E |1

involved. Therefore, the question raised by the Appellants does involve a substantial question
of law as rights protected under umpteen number of constitutional provisions stand violated.
1.1.2 THE COURT HAS THE POWER TO STRIKE DOWN A LAW IN CONTRAVENTION OF
PART III OF THE CONSTITUTION OF INDIA
(¶4) The Fundamental Rights of the individuals are protected under Part III of the
Constitution of India and the Constitution is the Law of the Land. 4 Article 13(2) places an
express bar on making laws that goes against the guarantees enshrined in Part-III of the
Indian Constitution. The purview of “Law” under Article 13(2) includes “Amendments” that
are made to statutes by an Act of Legislature which have been challenged on a number of
occasions as being violative of the Fundamental Rights 5 . Thus, in the present case, the
amendments made to the Special Marriage Act, 19546 and the Indian Succession Act, 19257
are liable to be struck down on account of the mandate under Article 13(2).
1.1.3 THE PRINCIPLE OF LOCUS STANDI IS VALIDATED
(¶5) It is submitted that the power conferred upon the Supreme Court under Article 136
cannot be curtailed by any statutory or constitutional provision.8 Therefore, the Counsel for
the Appellants would humbly request the Hon’ble Court to adjudicate upon the present matter
as there has been a travesty of Justice. The Appellants did not exhaust the Alternative
remedies because the bar of Res Judicata Applies, [1.1.3.1] and the provisions of Letters
Patent Appeal are not applicable [1.1.3.2].
4
I.R. Coelho v. Union of India, (2007) 2 SCC 1(India); State of Rajasthan v. Union of India, (1977) 3 SCC 592
(India); Indira Gandhi v. Raj Narain, (1975) Supp SCC 1 (India) ; Kesavananda Bharti v. State of Kerala,
(1973) 4 SCC 225(India).
5
Lily Thomas v. Union of India, (2013) 7 SCC 653 (India); see also Kuldeep Nayar v. Union of India, AIR 2006
SC 3127 (India).
6
Hereinafter referred to as SMA, 1954
7
Hereinafter referred to as ISA, 1925.
8
Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors. AIR 1954 SC 520 (India).

1.1.3.1 THE BAR OF RES JUDICATA APPLIES ON THE DECISION OF THE HIGH COURT
(¶6) It is further submitted that in the Present matter, the High Court had dismissed the matter
vide Common Judgment and Order9 i.e., the decision was covered with “Finality”, hence, the
bar of res Judicata applies.10 In Ramesh v. Gendalal Motilal11, the Hon’ble Supreme Court
held that a decision of the High Court might not finally settle the litigation between the
parties, but the Order will still be “Final” because of the controversy raised before the High
Court. An Order will thus be “Final” in this regard. Therefore, the Appellants could not have
invoked the Writ Jurisdiction of the Supreme Court under Article 32.
1.1.3.2 THE MATTER FALLS OUTSIDE THE PURVIEW OF LETTERS PATENT APPEAL
(¶7) The present matter falls outside the purview of Letters Patent Appeal i.e., an appeal to a
division bench of the same High Court as the essential condition for such an appeal is that the
matter should be decided by a Single Judge. 12 The Appellants have raised questions
concerning interpretation of Constitutional provisions before the High Court of Bombay;
therefore, the same has been heard by a division bench of the same Court already.13
1.2 THE SPECIAL LEAVE PETITION FILED BY THE STATE OF MADINA IS
MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT.
(¶8) It is humbly submitted that the SLP filed by the State of Madina is maintainable before
the Hon’ble Court as the Treaty obligation does not require to be implemented through an
Act of Legislation [1.2.1], Article 51 of the Constitution provides obligation upon the Union
of India to foster respect for Treaty obligations [1.2.2], the alternative remedy available was
not efficacious [1.2.3], and the principle of Locus Standi is validated [1.2.4].
9
Moot Proposition, ¶ 18.
10
Gulam Abbas & Ors. v. State of Uttar Pradesh & Ors., (1982) 1 SCC 71 (India); State of Maharashtra v. M/s.
National Construction Company, Bombay (1996) 1 SCC 786 (India); Sushil Kumar Mehta v. Gobind Ram
Bohra, (1990) 1 SCC 193 (India); see also Daryao v. State of U.P., AIR 1961 SC 1547(India); Gulabh Chand
Parikh v. State of Gujarat, AIR 1965 SC 1153 (India); The Code of Civil Procedure, 1908, §11.
11
Ramesh v. Gendalal Motilal, AIR 1966 SC 1445 (India)
12
Revaben & Ors. v. Vinubhai Purshottambhai Patel & Ors., 2013 (1) GLH 440 (India).
13
The Bombay High Court (Original Side) Rules, 1980, Chapter XXXIII rule 636.

1.2.1 THE TREATY OBLIGATION DOES NOT REQUIRE TO BE IMPLEMENTED THROUGH
AN ACT OF LEGISLATION
(¶9) It is submitted that India, being a Common Law country, follows the “Dualist” approach
with respect to enforcement of Treaty obligations undertaken by the Executive.14 According
to the Dualist approach, only such treaties as affecting Private rights of the citizens, the
cession of territory or involving modification of the Laws of the Land etc. are required to be
implemented in the Domestic Law through an act of Parliament. 15 In Maganbhai Ishwarbhai
Patel,16 the Supreme Court opined that making a law in order to enforce a treaty obligation
by the Municipal Court is not necessary when the rights of the citizens or others which are
recognized by law are not affected. In the present case, the implementation of the Bilateral
Treaty through an act of legislation under Article 253 of the constitution is not necessary
since the treaty provisions do not go on to affect the rights of the citizens of India.17
1.2.2 ARTICLE 51 OF THE CONSTITUTION PROVIDES OBLIGATION TO FOSTER
RESPECT FOR INTERNATIONAL TREATIES
(¶10) It is submitted that Article 51(c) of the Constitution of India mandates the State to
foster respect for International Laws and Treaty obligations.18 Though, Article 51 is only a
Directive Principle, yet the intention while framing it was that the executive and the
legislature should not only pay lip service to these Directive Principles, rather “they should
be made the basis of all executive and legislative Action”.19 The Directive Principles, though
14
Jolly George Varghese v. The Bank of Cochin, AIR 1980 SC 470 (India); State of West Bengal v. Kesoram
Industries Ltd., (2004) 10 SCC 201(India); see also Bhavesh Jayanti Lakhani v. State of Maharashtra & Ors.,
(2009) 9 SCC 551 (India).
15
I.A. Shearer, “Starke’s International Law” 71-72 (Oxford University Press, 3rd impression, 11 th ed. 2009); see
also Maganbhai Ishwarbhai Patel v. Union of India & Anr., 1969 (3) SCR 254 (India).
16
Maganbhai Ishwarbhai Patel v. Union of India, 1969 SCR (3) 254 (India); Union of India v. Azadi Bachao
Andolan, (2004) 10 SCC 1 (India); Narendra Kandoliya, A paradigm shift in the role of domestic courts in
implementing International treaty provisions: an Indian perspective. Available at:
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=29c6ccdf-f94e-42e5-8bdd-
64f58d2a962c&txtsearch=Subject:%20Miscellaneous (Last accessed on 17 th August, 2018).
17
The Constitution of India, 1950, Art. 25.
18
T. Rajkumar v. Union of India, 2016 (3) CTC 681(India); see also The Constitution of India, 1950, Art. 51.
19
Subhash C. Kashyap, India and International Law 19 (Bimal N. Patel, 2005)

not enforceable, if so required, can be kept in view in order to interpret the other parts of the
Constitution and statutes made under it.20
1.2.3 THE ALTERNATIVE REMEDY AVAILABLE TO STATE OF MADINA WAS NOT
EFFICACIOUS
(¶11) It is humbly submitted that the rule of exhaustion of Alternative remedies is a rule of
self- imposed limitation rather than a rule of law.21
(¶12) In the present case, the Appellants have approached the Division Bench of the Bombay
High Court22 which dismissed the Writ Petitions through a Common Judgment and Order23.
The said Order is not appealable under the Letters Patent of Bombay High Court as the Writ
was not decided by a Single Judge of the Same High Court; a pre-requisite under Law.24
Further, the remedy of pursuing Arbitration as stipulated in the Treaty25 would have also have
proved to be inefficacious because the particular relief that the State of Madina is aiming to
seek in the present matter is inter alia striking down of the various amendments and repeals
by which a UCC was adopted in India. 26 Not all matters are capable of being effectively
adjudicated upon by the Arbitrator i.e., certain matters are reserved for the courts.27 These
include matters where the type of remedy or prayer that the aggrieved requires, is not one
which can be effectively granted by the Arbitrator.28 The subject matter of the present dispute
involves the determination of rights and liabilities of a vast number of citizens of India which
makes it a matter of ‘Public Policy’ and, therefore, out of the purview of Arbitration. 29
20
Dinesh Gurjar v. Union of India, 1999 (2) MPLJ 649 (India).
21
A.V. Venkateswaran v. R.S Wadhwani AIR 1961 SC 1506 (India); Atulya Kumar De v. Director, AIR 1953
Cal 548 (India); Harbans Lal Sahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107 (India).
22
Supra note 13.
23
24
Revaben & Ors. v. Vinubhai Purshottambhai Patel & Ors., 2013 (1) GLH 440 (India).
25
26
27
David St.John Sutton, Russel on Arbitration 28 (22 nd ed. 2003).
28
Ibid.
29
Shin–etsu Chemical Co Ltd v. Aksh Optifibre Ltd, (2005) 7 SCC 234 (India).

Determination of violation of Fundamental Rights are connected with ‘Public Policy’,
therefore the same cannot be submitted to an Arbitrator since safeguarding rights of people is
the righteous judicial approach.
1.2.4 THE PRINCIPLE OF LOCUS STANDI IS VALIDATED
(¶13) Locus Standi refers to the Legal capacity to invoke the jurisdiction of the Court.30 In the
present matter, the State of Madina has the requisite Locus as the act of Implementing UCC
has violated the Bilateral Treaty [1.2.4.1], and the Treaty had the closest connection with the
territory of India [1.2.4.2].
1.2.4.1 THERE IS A VIOLATION OF AN ESSENTIAL PROVISION OF THE TREATY
(¶14) It is submitted that in the present matter, the act of implementing the UCC has violated
an essential provision of the Treaty. The Treaty contained an express clause to the effect that
religious rights of the Sunni Muslims shall be protected 31 ; however, UCC violates the
religious rights protected under Article 25 of the Constitution. On violation of a provision of
the Treaty, the aggrieved party holds the right to approach the most appropriate judicial
forum and seek damages for the loss suffered.
(¶15) In the present matter, both the actions as well as inactions of the Union of India are
violative of the Constitutional and Human Rights 32 guaranteed to the Citizens of Madina.
Therefore, the situation demands judicial activism in the present matter because the Locus
Standi of the State of Madina gets validated if the matter is intricately linked with the Treaty.
1.2.4.2 ENFORCEMENT OF THE BILATERAL TREATY IN THE MUNICIPAL COURT
(¶16) It is submitted that in the present matter, going by the mandate of the “Closest
Connection test”, the Municipal Courts in India should be the rightful forum for the State of
30
Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722 SC 1996 (India).
31
Moot clarification, Refer Ans. 8.
32
G.A. Res. 217A (III), Universal Declaration of Human Rights, Art. 18, Dec. 10, 1948.

Madina to approach because of the proximity of the treaty to the territory of India. 33 In
contracts where the parties choose to stay silent on the aspect of the governing law, the courts
would endeavor to attribute an intention by identifying the legal system where the transaction
is getting completed.34 In the present matter, the entire transaction between the two States
was ultimately getting concluded in the territory of India, therefore, the Hon’ble Court should
impart an implied intention in the present matter.
(¶17) In addition to that, it is submitted, that the jurisdiction of the Court can only be ousted
by an express provision of law or where the ouster was clearly implied by the parties.35 The
State of Madina has a legitimate interest in the matter because it seeks to enforce the terms of
the Bilateral Treaty, which specifically entailed a clause to the effect that religious rights of
Sunni Muslims shall be not tampered with.36
ISSUE II: WHETHER THE MANNER IN WHICH THE UCC WAS IMPLEMENTED
VIOLATED THE TREATY OBLIGATIONS AND THUS LED TO A BREACH
(¶18) It is humbly submitted that in the present matter the respondent has violated the Treaty
as there has been a material breach of the Treaty as per the terms of the VCLT, 1969 [2.1],
the Union of India has violated the principle of Pacta Sunt Servanda along with Article 27,
VCLT [2.2] and the Respondent has negated the Idea of Rights that are associated by virtue
of Citizenship [2.3].
33
Whitworth Street Estates (Manchester) Ltd. v. James Miller and Partners Ltd., (1970) A.C. 583 (U.K.);
Enercon (India) Ltd. & Ors. v. Enercon Gmbh & Anr., ( 2014) 5 SCC 1 (India); Bharat Aluminium Company
v. Kaiser Aluminium, (2012) 9 SCC 552 (India).
34
National Thermal Power Corporation v. Singer Company, AIR 1993 SC 998 (India); see also Rabindra N.
Maitra v. Life Insurance Corporation of India, AIR 1964 Cal 141 (India); Coast Lines Ltd. v. Hudig & Veder
Charterin NV, (1972) 2 Q.B. 34 (U.K.).
35
Dhulabhai v. State of M.P., (1968) 3 SCR 662 (India); see also Union of India v. Vodafone Group Plc United
Kingdom & Ors., 2018 OnLine Del 8842 (India).
36
Supra note 30.

2.1 THERE HAS BEEN A MATERIAL BREACH OF THE TREATY OBLIGATION BY THE
UNION OF INDIA
(¶19) The present Bilateral Treaty being an agreement between two sovereign states; it shall
be governed by the principles mentioned in the Convention. 37 Therefore, the general
underlying principles of law in both the treaty law and contract law are the same. 38 Though
not signed or ratified by India, the courts have applied the VCLT, 1969 as and when needed.
In Ram Jethmalani v. Union of India 39 , the Supreme Court applied the provisions of the
Vienna Convention on the Law of Treaties.
(¶20) In the present case, the UCC has led to a material breach of the Treaty as it violates a
provision essential to fulfilling the object of the Treaty. 40 The freedom to profess and
propagate a religion of their choice became an important provision of the Treaty as firstly
there was already an express understanding between all the 5 countries to not alter the
41
religious divisions and secondly the freedom to profess a religion of her choice by an
individual has achieved the Status of Customary International Law therefore applicable on all
human beings.42
VALIDITY OF EXPRESS UNDERSTANDING BETWEEN ALL THE 5 COUNTRIES OF THE WORLD
(¶21) While the applicability of VCLT is limited to written agreements, unwritten bargains
have been legally enforced as well.43 In Novartis AG v. Union of India44, the Madras High
37
Collr. Of Custom v. Narayani Trading Concern (Pvt.), 1997 (89) ELT 668 (India); see also People’s Union for
Civil Liberties v. Union of India, (1997)1SCC 301.
38
Robert Kolb, The Law of Treaties: An introduction 128 (Edward Elgar Publishing, 1 st ed. 2017).
39
Ram Jethmalani v. Union of India, (2011) 8 SCC 1; AWAS Ireland v. Directorate General of Civil Aviation,
SCC OnLine Del 8177
40
The Vienna Convention on the Law of Treaties, Art. 60(3), May 23, 1969, 1155 U.N.T.S. 331, 8 II.L.M. 679.
41
42
Anat Scolnicov, The Right to Religious Freedom in International Law: Between Group rights and Individual
rights 11 (Routledge, 2012).
43
Denmark v. Norway, 1933 P.C.I.J. Ser.A/B, No. 53. see also T.M. Franck & A.K. Thiruvengadam,
International Law and Constitution-Making, 2, CHINESE JOURNAL OF INTERNATIONAL LAW, 2003, at
467.
44
Novartis AG v. Union of India (2007) 4 MLJ 1153(India).

Court held that International agreements are in the nature of ordinary contracts between the
Parties. Keeping that in mind, the important consideration in such a situation for determining
the validity of an express understanding is to see whether the parties had the “intention” to be
bound by the agreement.45 The requirement of “intention” to be bound by the terms of the
Agreement is the foremost essential.46
FREEDOM TO PRACTICE AND PROPAGATE RELIGION HAS BECOME AN ESTABLISHED PRINCIPLE OF
CUSTOMARY INTERNATIONAL LAW
(¶22) The Freedom of thought, conscience and religion is enshrined in the Universal
Declaration of Human Rights.47 So much importance have been levied to achieving them that
the UN has explicitly mentioned that the principles of the Universal Declaration of Human
Rights are to be recognized as customary law regardless of the fact that sovereign states have
chosen to ratify them or not.48
(¶23) Keeping in mind the validity of the express understanding between the five nations
coupled with the fact that freedom to propagate and profess a religion is a Customary
International Law, the parties entered into the Bilateral Treaty with a Legitimate Expectation
that the citizens of Madina would be free to practice their own Personal Law. This
expectation of the Sunni Muslims of Madina to practice their own religion became a
provision essential to accomplishing the object of the treaty and the same is being frustrated
with the implementation of the UCC.
45
Kolb Supra note 36.
46
CWT v. Abdul Hussain Muhammad Ali, (1988) 3 SCC 562 (India). see also Cheshire and Fifoot’s Law of
Contract (10th ed.) 97; Qatar v. Bahrain, [1999] ICJ Rep 3.
47
G.A. Res. 217A (III), Universal Declaration of Human Rights, Art. 18, Dec. 10, 1948.
48
Unglobalcompact.org.(2018). Human Rights | UN Global Compact. [online] Available at:
http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/humanRights.html [Accessed 14th Aug.
2018].

(¶24) In addition to that, according to the International Law Commission, “essential
provisions” are not confined to those that relate directly to the central purpose of the Treaty;
rather, other provisions considered by the party to be essential for the effective execution of
the Treaty, even though of an ancillary character, also fall within its ambit.49
2.2 THE UNION OF INDIA HAS ACTED IN VIOLATION OF THE PRINCIPLE OF PACTA
SUNT SERVANDA AND ARTICLE 27 OF VCLT.
(¶25) Article 26 of the VCLT states: “Every Treaty in force is binding upon the parties to it
and must be performed by it in good faith”. The Principle is as fundamental as it is classic.
Article 51(c) of the Constitution is a direct concomitant of this principle.50 It mandates the
parties to a bilateral/multilateral treaty to foster respect for its international obligations or in
other words the “contracts are to be kept”.51
(¶26) In the present matter, the Union of India has failed to honor its Treaty obligation by
arbitrarily legislating a Uniform Code binding upon all citizens irrespective of their religious
diversities; therefore, it has acted in breach of the age old principle of “Pacta Sunt
Servanda”. As already mentioned above, Article 51(c) of the Constitution is the Indian
variant of the principle. Irrespective of its status as a Directive Principle of State Policy
(DPSP), the Courts have time and again held that Directive Principles have to be read along
with Part III of the Constitution.52 The harmony between Part III and Part IV is essential to be
maintained as it is this harmony which forms part of the basic structure of the Constitution.53
Therefore, it is contended that having regards to the aforementioned contentions, it is
49
Report of the International Law Commission on the Work of Its Eighteenth Session, U.N. Doc. A/6309/Rev.1
(1966), reprinted in [1966] 2 Y.B. INT'L L. COMM'N 172, 255, U.N. Doc. A/CN.4/SER.A/1966/Add.1.
50
3 D.D. Basu, Commentary on the Constitution of India, 4202 (Lexis Nexis Butterworths Wadhwa, Nagpur, 8 th
ed., 2008).
51
Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly, (1986) 3 SCC156 (India) ; see
also Tarun Bhargava v. State of Haryana, 2003 (3) KLT 397 (India).
52
Air India statutory Corporation v. United Labor Union, (1997) 9 SCC 377 (India); Ashoka Kumar Thakur v.
Union of India, (2008) 6 SCC 1(India).
53
Sajjan Singh v. State of Rajasthan, 1965 SCR (1) 933 (India); Minerva Mills Ltd. & Ors v. Union of India,
1981 SCR (1) 206 (India).
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | 10

abundantly clear that the Union of India has acted in gross violation of its Constitution as
well as the VCLT.
(¶27) It is further submitted that the respondents cannot justify its attempt to evade a treaty
obligation through a provision of its internal law as it violates Article 27 of the VCLT.54
Article 26 and 27 of the VCTL are more popularly referred to as the peremptory principles of
Treaty Law.55 In Director of Income Tax v. New Skies Satellite BV & Ors.56, reiterated the
same while observing that obligations of states under treaty law are rooted under Customary
International Law which have been codified by the VCLT, especially Article 26 (Pacta sunt
servanda) and Article 27.
2.3 THE UNION OF INDIA HAS NEGATED THE IDEA OF RIGHTS VIS-À-VIS CITIZENSHIP
(¶28) It is submitted that since religion is an important aspect of the Personal Law, therefore,
the act of implementing a UCC would tantamount to undermining the fundamental freedom
of an individual to profess the religion of his/her choice since both religious belief and
Personal Laws are so closely intertwined that one cannot survive without the other. 57 In State
of Bombay v. Narsu Appa Mali 58 , The Hon’ble Bombay High Court observed that
Mahomedan Law is essentially based on the Quran since it contains the various essential
provisions which regulates the various aspects of life coupled along with the religious laws
which add up to govern the body politic. Because of the implementation of Uniform code, the
Muslim Personal Laws are being subverted because it in essence repeals The Muslim
Personal Law (Sharia) Application Act, 1937 which originates from Quran. The Quran in
turn is the Primary source of Muslim personal law that governs the religious practices
54
The Vienna Convention on the Law of Treaties, Art. 27, May 23, 1969, 1155 U.N.T.S. 331, 8 II.L.M. 679.
55
Kolb supra note 36.
56
Director of Income Tax v. New Skies Satellite BV & Ors., (2016) 382 ITR114 (India).
57
Tahir Mahmood, Uniform Vs Common Civil Code in India, 11(3) Journal Of Dharma: Dharmaram Journal Of
Religion And Philosophies (1986) at 234.
58
State of Bombay v. Narsu Appa Mali ,AIR 1952 Bom 84 (India).

essential to the Muslims in Particular irrespective of the Country that they come from. 59 The
essential part of a religion is determined on introspection into the Theology associated with
the Particular religion.60 In essence, the Muslim Personal Law in particular is so interwoven
with the identity of a Muslim that any attempt to subvert it, directly leads to violation of
Rights. 61
(¶29) The jurisprudence of Citizenship is essentially interlinked with the concept of Rights.62
According to Marshal, citizenship is a status that encompasses with it full membership of a
community. The individuals, who are a citizen of a country, are equal in regards to the Rights
and Liabilities attached with it.63 The freedom to practice and Propagate religion is also an
essential element of Civil Rights. Keeping in Mind the aforementioned contentions, the
Counsel for the Appellants contend that the Nationals of Madina are equally entitled to the
Rights because that is the essence of citizenship, in the absence of which the religious
freedom of an individual stands hampered.
59
Shayara Bano v. Union Of India & Ors., (2017) 9 SCC 1 (India).
60
Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496 (India).
61
Supra note 57.
62
Christopher Pearson, The Welfare State reader 30-32 (Francis G. Castles, 1st ed. 2006)
63
Ibid.

ISSUE III: WHETHER THE MANNER IN WHICH THE UNIFORM CIVIL CODE
WAS IMPLEMENTED IS ARBITRARY AND UNCONSTITUTIONAL
(¶30) It is humbly submitted before this Hon’ble Court that the implementation of the
Uniform Civil Code is arbitrary and unconstitutional as it was in violation of the Fundamental
Rights [3.1] and there has been infringement on the principles of democracy [3.2].
3.1 THERE IS A VIOLATION OF FUNDAMENTAL RIGHTS
(¶31) It is submitted that the enactment of the Code is in violation of the Right to Equality
[3.1.1] and the Right to Freedom of Speech and Expression and Right to Life and Liberty
[3.1.2]
3.1.1 THE UNIFORM CIVIL CODE VIOLATES THE RIGHT TO EQUALITY AS IT IS
ARBITRARY
(¶32) It is humbly submitted that the principles of equality do not mean that every law be
universally applicable to all persons who are not equally placed or situated.64 Where an act is
arbitrary, it is unequal according to political logic and constitutional law and hence, violative
of Article 14. 65
(¶33) It is submitted that the impugned repeal of laws are within the ambit of Article 13 of the
Indian Constitution and any inconsistency with the Fundamental Rights can be done away
with by means of reforms. [3.1.1.1] The Constitution of India recognizes religion in India
under the idea of secularism [3.1.1.2], under Articles 25 and 26 [3.1.1.3] and under the idea
of pluralism [3.1.1.4]. Uniformity could be attained through Constitutional Uniformity and
changes with the Religious Personal Laws [3.1.1.5]. Further, manner in which it was
64
1 Jagadish Swarup & Dr. L.M. Singhvi, Constitution of India 407-408 (Thomson Reuters, 3rd ed. 2013).
65
E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 (India); see also Ramana Dayaram Shetty v.
International Airport Authority of India, (1979) 3 SCC 489 (India).

incorporated was in breach of the doctrine of legitimate expectation [3.1.1.6] and the
impugned repeals in the Personal Laws and amendments made are arbitrary [3.1.1.7].
3.1.1.1. THE IMPUGNED REPEALS ARE WITHIN THE AMBIT OF ARTICLE 13 AND 372
AND CAN BE JUDICIALLY REVIEWED.
(¶34) It is submitted that Personal Laws must be held to be included within the purview of
Article 1366 or else, it would go against the fundamental and core constitutional values and
the scheme of Article 13 since the Personal Laws cannot claim supremacy over the
Constitution. 67 Further, since custom, usage and statutory law are so inextricably mixed in
personal law; the residue of personal law outside them cannot be ascertained. They must fall
under Articles 13 and 372 and be subjected to Constitution and legislative power of
legislature68 and be struck down to the extent of being in contravention to the Fundamental
Rights.69 Also, pre-constitutional law under Article 372 can be challenged on the touchstone
of Article 14, 15 and 19 of the Constitution.70 Further, an amendment made to an existing law
or also comes within the purview of Clause (2).71
3.1.1.2 SECULARISM IN INDIA RECOGNIZES RELIGION
(¶35) It is humbly submitted that the principles of secularism is the basic structure as
envisaged in the Indian Constitution. 72 While Indian secularism recognizes and preserves
diverse languages and beliefs,73 it also permits ‘principled State intervention in all religion’.74
Secularism in India is built upon the foundation of right to religion as envisaged under Article
66
Sant Ram Sharma v. Labh Singh, (1964) 7 SCR 756 (India).
67
Hina v. State of Uttar Pradesh, (2016) SCC OnLine All 994 (India).
68
1 H.M Seervai, Constitutional Law of India 677 (Universal Law Publishing Co., 4 th ed. 2010).
69
Shayara Bano v. Union of India (2017) 9 SCC 1 (India).
70
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 (India); The Constitution of India, 1950, Art. 19.
71
Shri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459.
72
Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225 (India).
73
T.M.A Pai Foundation v. State of Karnataka, (1995) 4 SCC 1(India).
74
Ibid.

25 to 28 of Constitution of India. 75 While the West notions of secularism maintain
disassociation with religion and anything to the contrary will be deemed to be an ‘illegitimate
intrusion of religion in the State.’ 76 , the Indian idea recognizes religion in India 77 and
provides constitutional protection without any favor or discrimination.78
3.1.1.3. ARTICLES 25 AND 26 GUARANTEES RIGHT TO FREEDOM OF RELIGION AND
THE IMPLEMENTATION OF UNIFORM CIVIL CODE VIOLATES THE RIGHT.
(¶36) It is submitted that Articles 25 and 26 guarantee every person in India the freedom of
conscience.79 The Articles are not limited to matters of doctrine or belief, but it extends to the
acts done in pursuance of religion which are integral parts of the religion.80
(¶37) It is further submitted that Personal Laws were derived from the religious scriptures81
and marriage, inheritance, divorce and conversion are as much religious in nature and content
as any other belief or faith.82 Due to such wide variations in personal beliefs and customs it
was considered appropriate to respect the differences and make Personal Laws commensurate
with the customary practices within each community.83
(¶38) The reassurance given to the Muslim community that their corporate identity was
recognized and that their corporate life was secured came in the form of allowing the Muslim
community to preserve and practice their personal law.84 Further, Muslim Personal Law is so
75
Sarla Mudgal v. Union of India, (1995) 3 SCC 635 (India).
76
Harhita Vatsayan, India’s Quest for Secular Identity and Feasibility of a Uniform Civil Code, 1 ILI Law
Review (2017).
77
Dravidar Kazhakam, Represented by the General Secretary, K. Veeramani v. The Chairman, United India
Insurance Company Limited (1992) 1 MLJ 530 (India).
78
Radhakrishnan, Secularism in India 127 (V.K.Sinha, 1968); Dr. Radhakrishnan said that "The religious
impartiality of the Indian State is not to be confused with secularism or atheism.”
79
Ratilala Panachand Gandhi v. State of Bombay, (1954) SCR 1055(India).
80
Seshammal & Other v. State of Tamil Nadu, (1972) 2 SCC 11 (India).
81
C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami, (1996) 8 SCC 525(India).
82
Supra note 75.
83
Report of the National Commission for Religious and Linguistic Minorities, Ministry of Minority Affairs
(2007) at 53.
84
Id. Susanne Hoeber Rudolph & Lloyd I. Rudolph, Living With Difference in India: Legal Pluralism and Legal
Universalism in Historical Context, in Religion And Personal Law In Secular India – A Call To Judgement,
(Gerald James Larson ed., 2001) at 49.

interwoven with the significance for Muslim identity that dismantling or reforming the same
constitutes a threat to the identity85 and their laws of succession and divorce are dependent
upon their religion.86
(¶39) Personal Laws are so integral to a religion that the Government considered that unless
the community demands a change of Personal Laws and is united in its demand, it will not
interfere to change the laws of the communities 87 and such changes were suggested by
members of the communities themselves, including women of the communities. 88 The
complete eradication of their Personal Laws by the Central Government consequently
resulted in loss of their religious identity in secular India.
3.1.1.4 THE IDEA OF PLURALISM UNDER CONSTITUTION PRESERVES RELIGIOUS
DIVERSITY
(¶40) It is submitted that religious diversity cannot be done away with while framing Uniform
Civil Code as it has the Constitution provides adequate provisions for preservation of
religious communities.89 Pluralism is a feature of secularism in India and the idea speaks for
mutual respect and tolerance of devotees of different religions and unity in diversity.90 It is
further submitted that Personal Laws for various religions like Hindu, Muslims and Parsis
were introduced due to difference in their religious philosophies. 91 Articles 25-30 embody
the principles of religious tolerance; a characteristic feature of secular India. 92 Different
religious loyalties represent basic division between different religions and their complete
85
Cyra Akila Choudhary, (Mis) Appropriated Liberty: Identity, Gender Justice and Muslim Personal Law
Reform in India,17 Coumbia Journal Of Gender And Law, (2008) at 48.
86
VII Constituent Assembly Debates Official Report, Book no. 2 at 543.
Mahboob Ali Baig Sahib Bahadur stated: “As far as the Mussalmans are concerned, their laws of succession,
inheritance, marriage and divorce are completely dependent upon their religion.”.
87
Meher K. Master, Personal Laws of Religious Communities in India, 11(3) Journal of Dharma: Dharmaram
Journal Of Religions And Philosophies (1986) at 272.
88
Supra note 82.
89
Supra note 72.
90
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (India).
91
Mr. Zubair Ahmed Khan, Uniform Civil Code: Prospect of Gender Equality, Bharati Law Review (2016) at
47.
92
Sardar Suedna Tair Saifiiddin v. State of Bombay, AIR 1962 SC 853 (India).

disappearance in the name of national integrity is unnatural to the social life and conscience
of the different religious groups in India.93
3.1.1.5 UNIFORMITY MEANS CONSTITUTIONAL UNIFORMITY AND CHANGES HAVE TO
BE BROUGHT WITHIN THE INDEPENDENT SCOPE OF EACH RELIGION.
(¶41) With respect, it is submitted that reforms have to come from within each community so
as to be in accord with the sentiment or change in conscience of the religion.94 It is further
submitted that Article 14 of the Constitution does not necessitate a legislation of an all-
embracing character. The State may bring social reforms by stages and such stages may be
territorial or community-wise.95 The word “secure” in Article 44 is interpreted as “obtaining
goals or objectives referred to in the different situations”.96
(¶42) Further, sovereignty is always limited and its exercise must reconcile itself with the
sentiments of different communities.97 Therefore, instead of applying absolute uniformity,
rationalizing Personal Laws would develop religious and cultural amity.98 These laws can be
reformed whenever it is essential in light of social and economic justice.99
(¶43) It is further submitted that the Law Commission100 stated that a Uniform Civil Code is
neither necessary nor desirable at this stage rather laws that are discriminatory in nature
should be taken into consideration. Further, diversity of Indian culture should be celebrated
and resolutions of conflicts do not mean abolition of difference.
93
Aloo J. Dastur, Secularism And National Integration 110 (Law, Society and Education, De. P.B. Gajendrakar
Felicitation Volume, Somaiya Publications Pvt. Ltd. Bombay 1973); see also Dr. M.P Raju, Uniform Civil
Code: A Mirage 141(Justice & Peace Commission, Delhi and Society for Media & Value Education, Delhi
2003).
94
Ka Steldoris Syiemlieh v. U. Skipland Sanglyne & Anr. AIR 1986 Gau 24(India); see also Lily Thomas v.
Union of India, (2000) 6 SCC 224.
95
Khursheed Ahmad Khan v. State Of U.P.& Ors, (2015) 8 SCC 439 (India).
96
Guruvayar Devaswom Managing Committee v. Pritish Nandy & Anr, 1987 CriLJ 192 (India).
97
The Honorable Dr. B.R.Ambedkar stated “.. that sovereignty is always limited … No government can exercise
its power in such a manner as to provide the Muslim community to rise in rebellion. “.
98
Supra note 75.
99
Supra note 57.
100
Law Commission of India, Consultation Paper on Reform of Family Law (31 st August, 2018) ¶ 1.15.

(¶44) Further, a law must be in consonance with the Constitution of India and when the
Constitution itself has carved various exceptions that entail the preservation of not only
distinct family law systems but also various other exceptions relating to other aspects of civil
law. 101 Therefore, a ‘united’ nation need not necessarily have ‘uniformity’, it is making
diversity reconcile with certain universal and indisputable arguments on human rights. 102
3.1.1.6 THERE WAS INFRINGEMENT OF THE DOCTRINE OF LEGITIMATE
EXPECTATION
(¶45) It is humbly submitted that the requirement of due consideration of legitimate
expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the
rule of law103 and the socialist concept of society imposes a duty to offer reality to such
concept.104 Further, the Code should be gradual with the consent of the affected parties.105
(¶46) In such a pluralist country even a slightest deviation in the Freedom of Religion could
shake the social fibre106 and the Code is only possible when social climate was properly and
masses are willing to accept the change.107 Securing of the civil code must be done through
the legislation wherein it must be achieved through dialogue and mediation and not by merely
imposing the will of the majority upon the minority. 108 The Law Commission should be
entrusted with the responsibility to consult with Minorities Commission109 or Parliamentary
Special Committee must have created a dialogue through mediation between the different
101
The Constitution of India, 1950 Art. 371(A) to (I) & 6 th Schedule.
102
Supra note 102 ¶1.35; The Universal Declaration of Human Rights, 1948 Art. 16.
103
Food Corporation of India v. M/s Kamdhenu Cattlefield Industries, (1993) 1 SCC 71 (India).
104
Secretary, Haryana State Electricity Board v Suresh, AIR 1999 SC 1160 (India).
105
Mr. Naziruddin Ahmad stated “As I have already submitted, the goal should be towards a uniform civil code
but it should be gradual and with the consent of the people concerned. I have therefore in my amendment
suggested that religious laws relating to particular communities should not be affected except with their
consent to be ascertained in such manner as Parliament may decide by law. “.
106
Pannalal Bansilal Pitti v. State Of Andhra Pradesh, 1996 SCC (2) 498 (India).
107
Supra note 75.
108
Shimon Shetreet & Hiram E. Chodosh, Uniform Civil Code for India 29 (Oxford University Press 1 st ed.
2015).
109
Supra note 75.

groups and communities so as to determine the substantive provisions that shall constitute the
UCC.110 The stage of legislating the Code must have had periods of information gathering,
debates, and proposals to aid its transparency and legitimacy111 as the State must strive to
reach a consensus by the construction of dialogue.112
(¶47) Further, an enactment in one go would be counter-productive to unity and integrity of
nation 113 and time must have been allowed for both the citizens and State to adjust,
psychologically and practically - to a new and innovative system such as the Code.114 The
process of making law or making amendments in the law is a slow one and any mischief or
defect which is most acute can be remedied by process of law at stages.115
3.1.1.7 THE IMPUGNED REPEALS AND AMENDMENTS ARE ARBITRARY
(¶48) It is submitted that Special Marriage Act, 1954 considers cousin relationship between
two persons as one of prohibited relationships116 and such relationship includes relationship
by adoption as well as by blood.117 This is in conformity with the dominant Hindu culture
which recognizes brother-sister relationship between the issues of two brothers, or of two
sisters or of a brother and sister to be within the degree of prohibited relationship but no such
legal prohibition is found among Christians, Jews, Muslims and Parsi. 118 Moreover, such
provisions provide privileges to Hindu whereas prove disadvantageous to other minority
110
Supra note 108 at 31.
111
Paul Craig & Grainne De Burca, EU Law: Text, Cases and Materials 32 (Oxford University Press 4 th ed.
2007).; European Union’s Convention on the Future of Europe held in 2002, which progressed in three stages
:the listening stage, the examination stage, and the proposal stage.
112
Vrinda Narain, Women's Rights and the Accommodation of "Difference: "Muslim Women in India, 8 Southern
California Review Law & Women's Studies (1999) at 65.
113
Supra note 75.
114
Supra note 108 at 31.
115
Supra note 106.
116
Special Marriage Act 1954, Schedule I; Part I & Part II Entries 34-37.
117
Special Marriage Act 1954, §. 2 (b) Explanation I (c).
118
Tahir Mahmood, Religious Elements in a Secular Marriage Law, The Hindu Marriage & Special Marriage
Acts at 297.

communities. 119 Further, in equating relationship by adoption with blood relationship, the
Act recognized the Hindu culture of adoption120 while overlooked the prohibition of the same
in Quran.121
(¶49) The inserted Section 50A of the Act recognizes pre-nuptial agreements. Marriages in
Muhamadan law are of contractual nature.122 They involve negotiation of a mahr provision as
part of a marriage contract which consists of a monetary payment from husband to wife, 123
and therefore, has been construed to be a prenuptial agreement.124 Under Muslim Law, such
agreements are enforceable. 125 However, a pre-nuptial contract seems to be not only
inconsistent with the theory of the relation between husband and wife according to the Hindu
Law, but against public policy. 126 Public policy demanded preservation of the peace and
reputation of families; and since an agreement for future separation was for their destruction,
such agreements opposed to public policy.127
(¶50) It is also submitted that in free and democratic India once a person becomes a major a
person can marry as he likes.128 Given the diversity among Indian citizens and their notions
of solemnization of marriage, by repealing Section 42 of the Special Marriage Act, their
conscience which mandates different forms of marriages has become subservient. Marriages
under the present enactment will only be recognized if it has been registered irrespective of
whether the rituals and ceremonies have been performed. The Islamic concept of divorce like
119
Law Commission of India, Laws of Civil Marriages in India – A Proposal to resolve Certain Conflicts
(October 2008, Report No. 212) at 20.
120
Shyam Sunder Prasad Singh & Ors. v. State Of Bihar & Ors, 1981 SCR (1) 1 (India).
121
Al- Quran (33:5) “Nor has He (Allâh) made your adopted sons your sons. Such is (only) your (manner of)
speech by your mouths. But God tells the truth, and He shows the way. Call them by (the names of) their
fathers, that is better in the sight of God.”.
122
R. Lantz, Herman, Romantic Love in the Pre-Modern Period: A Sociological Commentary, 15 (3) Journal Of
Social History (1982) at 349-370.
123
Carroll, Lucy Fatima in the House of Lords, 49 (6) The Modern Law Review (1986) at 776-781.
124
Akileh v. Elchahal, 2d 246; (Fla. Dist. Ct. App. 1996); Supra note 122.
125
Buffatan Bibi & Anr. v. Sheikh Abdul, AIR 1950 Cal 304 (India).
126
Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, (1901) ILR 28 Cal 751 (India).
127
Sm. Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244 (India).
128
Lata Singh v. State of U.P. & Ors, (2006) 5 SCC 475 (India).

khula which provides for an inexpensive and non-cumbersome procedure for unwilling
spouses to end dead relations with honor, self-respect and dignity, has not been incorporated
under the Code.129
(¶51) It is also submitted that the Muslim Law of inheritance has been admired for its
completeness and success as it has achieved the aim of providing not merely for the selection
of single individual or homogenous group of individual, who will inherit property, but for
adjusting competitive claim of nearest relations. 130 Under the Islamic law of inheritance,
although the sharers are Class I heirs and the residuaries are Class II heirs, they together share
the property.131 This provision does not find recognition in the inserted Section 31A which
creates a hierarchy where one class is given the right to exclude all other classes from
inheritance.132 This law of inheritance is the mandate of Quran, and a person ceases to be a
Muslim who acts in violation of the Holy Quran.133 With respect, it is submitted that the
insertion of the new section violates the Quranic principles of inheritance and such principles
are essential religious rights of the Muslims.
(¶52) It is also submitted that under the Indian Christian Marriage Act, there are five
categories of persons mentioned who can solemnize the marriage between the persons, one or
both of whom is or are a Christian or Christians.134 Thus by repealing their personal law, right
to solemnize the marriage lies with the Marriage officer who is appointed by the State
Government 135 and not with authorize persons as under their law. 136
129
Abdurahiman v. Khairunnessa, ILR 2010 (1) Kerala 830 (India).
130
Dr. Paras Diwan, Muslim Law in Modern India 212 (Allahabad Law Agency,10 th ed. 2011).
131
Id. at 225.
132
The Indian Succession Act, 1954 §31A.
133
Al- Quran 3:31 “Say (O Prophet, to mankind): If you love Allah follow me; and Allah will love you and
forgive your sins, Allah is forgiving, Most Merciful”.
134
Rahul Verma v. State of Rajasthan & Ors. AIR 2015 Raj 173 (India).
135
The Special Marriage Act, 1954 §3.
136
The Indian Christian Marriages Act, 1872 §5.

(¶53) Therefore, accepting a particular religion and ignoring the other for incorporating a
secular law which would be applicable to all religion is arbitrary. Further, since the beliefs of
people belonging to a particular religion are completely antithetical to that of another
religion, a uniform code administrating such beliefs does not serve justice.
(¶54) With respect, it is further submitted that various reforms can be made in the Family
Law regardless of Religious Diversity and taking away of Personal Laws. Also, the
responses to the Questionnaire filed by the citizens of India can be incorporated without
eradicating Personal Laws in its entirety. Some instances of the same are firstly, Compulsory
Registration of marriages 137 could be done by an amendment to the Registration of Births
and Deaths Act138, secondly the demand for uniform age of Consent for Marriage 139 could be
met by keeping the legal age of marriage in consonance with the Indian Majority Act,
1875.140
3.1.2. THE UNIFORM CIVIL CODE IS IN VIOLATION OF ARTICLES 19 AND 21 OF THE
CONSTITUTION OF INDIA
3.1.2.1 THERE IS VIOLATION OF ARTICLE 21 OF THE CONSTITUTION
(¶55) It is humbly submitted that the right to live with human dignity has taken within its fold
the process of civilization which makes life worth living and expanded concept of life would
141
mean the tradition, culture, and the heritage of the person concerned. The expression
personal liberty includes privacy which is an essential aspect of dignity and recognizes an
inviolable right to determine how freedom shall be exercised. 142
137
Moot Proposition at 12, Refer to Ans. 12.
138
The Law Commission of India, The Compulsory Registration of Marriages (270 th Report, 2017).
139
Supra note 137, Refer to Ans. 10.
140
Supra note 102 ¶ 2.21.
141
P. Rathinam v. Union of India, (1993) 1 SCC 645 (India).
142
Justice K.S. Puttaswamy & Ors. v. Union of India & Ors., (2018) 1 SCC 809 (India).

(¶56) Further, the ability to take decisions on aspects which define one’s personhood and
identity is an integral part of liberty and autonomy which inheres in each individual. 143 It is
submitted that religion is a matter of individual preferences and choices. 144 The Special
Marriage Act was optional and left a choice open to all citizens of India irrespective of their
caste, creed or religion. 145 The Uniform Civil Code in India became mandatory on the
citizens infringing upon their right to choose between their personal law and secular law.
3.1.2.2 THERE IS VIOLATION OF EXPRESSION AS ENVISAGED UNDER ARTICLE 19 OF
CONSTITUTION
(¶57) It is humbly submitted before this Hon’ble Court that Article 19(1) (a) means the right
to express one's opinion by any manner and would also include the freedom of
communication and the right to propagate or publish opinion.146 The Court has expanded
religious liberty to practices and even external overt acts of the individual.147 The right to
freely "profess, practice and propagate religion" is a facet of free speech guaranteed the
Article.148 By means of repeals, the right to express their religion by means of overt practices
of performing their rituals and ceremonies has been taken away despite their genuine,
conscientious religious objection clearly contravene the right guaranteed by Article
19(1)(a).149
143
Shafin Jahan v. Asokan K.M. & Others, Criminal Appeal No. 366/2018 Arising out of S.L.P. (Crl.) No.
5777/2017 (India).
144
Ajmal Khan & Ors. v. Election Commission of India & Ors. 2017(3) ALJ 261; International Covenant on
Civil and Political Rights, 1966. Art. 18,Dec. 16, 1966. 999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23
/ 6 ILM 368 (1967). Art. 18, §1states “Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or to adopt a religion or belief of his own choice and
freedom, either individually or in community with others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching.”.
145
Abdur Rahim v. Padma, AIR 1982 Bom 341(India); Kumud Desai, Indian Law of Marriage & Divorce 3
(LexisNexis Butterworths Wadhwa Nagpur, 8th ed. 2011).
146
S. Rangarajan v. P. Jagjevan Ram, (1989) 2 SCC 574 (India).
147
Supra note 75.
148
Supra note 142.
149
Bijoe Emmanuel & Ors. v. State of Kerala & Ors, (1986) 3 SCC 615 (India).

3.2. THERE IS INFRINGEMENT OF THE PRINCIPLES OF DEMOCRACY
(¶58) It is humbly submitted that the Legislation has not been enacted in consonance with
what the citizens of India want. As per the questionnaire filed by them it is evident that the
manner in which the Government has incorporated the Code is not approved by the people
who elected the same very Government.
(¶59) It is submitted as per the response to Question 5 of the Questionnaire, 70% of the
citizens of India felt that the Code must be optional150 . Further answer to Question 8 made it
clear that legal provision would not change a cultural practice; instead sensitizing the society
was the required step.151
(¶60) Also, considering the responses to Questions 9 and 10, it highlights the fact that the
citizens were concerned about brining uniformity “across all marriages”152 and “across all
Personal Laws and customary practices.”153.
(¶61) It is also submitted that the will of the people made it clear that freedom to practice an
individual’s practice154 and the fundamental concept of a religion must not be infringed155
while a Code that brings uniformity is incorporated.
(¶62) The above-mentioned provisions of the questionnaire clearly reflect the intention and
the attitude of the citizens of India. Repeals for Personal Laws were not warranted by the
citizens and hence, by doing the same, the Government went against the will of the people.
(¶63) With respect, it is thereafter submitted that, the Parliament and the State Legislature
embody the will of the people and the sense of democracy is that the will of the people must
150
Moot Proposition at 11.
151
Id. at 12.
152
Ibid, Refer Ans. 9.
153
Ibid, Refer Ans. 10.
154
Id at 13, Refer Ans. 13.
155
Ibid, Refer Ans. 14.

prevail.156Where there is dispute the will of the people and the State enacted laws, the former
must prevail. 157 Therefore, by not recognizing and appreciating the will of the people, the
principles of democracy have been violated.
(¶63) It is further submitted that the questionnaire itself was not sufficient enough to make
the citizens of India well versed with the notions of the Uniform Civil Code. Given the
response to Question 1, 70 % of the citizens are not aware of Article 44 158 the questionnaire
cannot be construed to be a mode of consultation or a piece of information. As a result, it
denies the citizens to participate in the matters that affect them.
(¶64) With respect, it is submitted that all citizens have a right to participate in the affairs of
the polity of the country and should be well informed on all sides of the issues, in respect of
which they are called upon to express their views. One-sided information, disinformation,
misinformation and non-information make democracy a farce. 159 Therefore, it is submitted
the manners in which the Code has been adopted against the principles of democracy and
thus unconstitutional and arbitrary.
156
1 Ibohal Singh, Constitutions, Constitutional Interpretation and Human Rights (Indian and Foreign) 1003
(LexisNexis Butterworths Wadhwa 1st ed. 2009).
157
Supreme Court Advocates-on- Record Association & Anr. v. Union of India, (1990) 2 SCR 433 (India).
158
Moot Proposition at 10, Refer Ans. 1.
159
Secretary, Ministry of Information and Broadcasting, Government of India & Ors. v. Cricket Association of
Bengal & Anr, (1995) 2 SCC 161 (India).

-PRAYER-
PRAYER
Wherefore, in the light of the issues raised, arguments advanced and authorities cited,
the Counsel for the Appellants most humbly and respectfully pray that this Hon’ble
Court may be pleased to:
1. Declare that the manner in which the Uniform Civil Code was brought is
unconstitutional and arbitrary.
2. Issue appropriate orders to strike down the various amendments and repeals
made to the various Personal Laws.
3. Hold that there has been a breach of the Bilateral Treaty with the state of
Madina by the Union of India.
4. Grant the liquidated damages to the State of Madina as per the Terms of the
Bilateral Treaty to the tune of 70, 00, 000 Billion Riyals.
AND/OR
Pass any such orders or issue such directions or grant such relief that it may deem
fit in lights of justice, equity and good conscience.
For this act of Kindness, the Appellants, as in duty bound, shall humbly pray.
All of which is most respectfully submitted.
Counsel for the Appellants
-MEMORIAL ON BEHALF OF THE APPELLANTS- P A G E | XXVI

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TEAM CODE- L

25TH M. C. CHAGLA MEMORIAL GOVERNMENT LAW COLLEGE NATIONAL MOOT

BEFORE THE HON’BLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION NO. ****/2018

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950

HINDU SEVA SANGH AND ORS …APPELLANTS

THE UNION OF INDIA …RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS

-MEMORIAL ON BEHALF OF THE APPELLANTS-

TABLE OF ABBREVIATIONS .......................................................................................................I

INDEX OF AUTHORITIES ......................................................................................................... III

FOREIGN JUDGEMENTS .......................................................................................................... III

SUPREME COURT JUDGEMENTS ............................................................................................. III

HIGH COURT CASES .............................................................................................................. VI

BOOKS REFERRED ................................................................................................................ VII

INTERNATIONAL CONVENTIONS AND TREATIES ................................................................. VIII

REPORTS ............................................................................................................................. VIII

CONSTITUENT ASSEMBLY DEBATES...................................................................................... IX

RULES REFERRED .................................................................................................................. IX

STATEMENT OF JURISDICTION .................................................................................................X

STATEMENT OF FACTS ............................................................................................................ XI

SUMMARY OF ARGUMENTS .................................................................................................. XIII

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

COURT ARE MAINTAINABLE IN LAW ................................................................................... 1

MAINTAINABLE BEFORE THE SUPREME COURT UNDER ARTICLE 136 .................................... 1

1.1.1 THE MATTER INVOLVES DETERMINATION OF A SUBSTANTIAL QUESTION OF LAW .. 1

PART III OF THE CONSTITUTION OF INDIA .......................................................................... 2

1.1.3 THE PRINCIPLE OF LOCUS STANDI IS VALIDATED ...................................................... 2

-MEMORIAL ON BEHALF OF THE APPELLANTS-

BEFORE THE HON’BLE SUPREME COURT............................................................................. 3

1.2.1 THE TREATY OBLIGATION DOES NOT REQUIRE TO BE IMPLEMENTED THROUGH AN

ACT OF LEGISLATION .......................................................................................................... 4

1.2.2 ARTICLE 51 OF THE CONSTITUTION PROVIDES OBLIGATION TO FOSTER RESPECT

FOR INTERNATIONAL TREATIES ......................................................................................... 4

1.2.3 THE ALTERNATIVE REMEDY AVAILABLE TO STATE OF MADINA WAS NOT

1.2.4 THE PRINCIPLE OF LOCUS STANDI IS VALIDATED ...................................................... 6

1.2.4.1 THERE IS A VIOLATION OF AN ESSENTIAL PROVISION OF THE TREATY ................. 6

1.2.4.2 ENFORCEMENT OF THE BILATERAL TREATY IN THE MUNICIPAL COURT ................ 6

TREATY OBLIGATIONS AND THUS LED TO A BREACH........................................................ 7

SERVANDA AND ARTICLE 27 OF VCLT. ............................................................................. 10

IMPLEMENTED IS ARBITRARY AND UNCONSTITUTIONAL ................................................. 13

3.1 THERE IS A VIOLATION OF FUNDAMENTAL RIGHTS .................................................... 13

-MEMORIAL ON BEHALF OF THE APPELLANTS-

CAN BE JUDICIALLY REVIEWED. ....................................................................................... 14

3.1.1.2 SECULARISM IN INDIA RECOGNIZES RELIGION ...................................................... 14

3.1.1.3. ARTICLES 25 AND 26 GUARANTEES RIGHT TO FREEDOM OF RELIGION AND THE

IMPLEMENTATION OF UNIFORM CIVIL CODE VIOLATES THE RIGHT. ................................ 15

3.1.1.4 THE IDEA OF PLURALISM UNDER CONSTITUTION PRESERVES RELIGIOUS

3.1.1.5 UNIFORMITY MEANS CONSTITUTIONAL UNIFORMITY AND CHANGES HAVE TO BE

BROUGHT WITHIN THE INDEPENDENT SCOPE OF EACH RELIGION. ................................... 17

3.1.1.6 THERE WAS INFRINGEMENT OF THE DOCTRINE OF LEGITIMATE EXPECTATION ... 18

3.1.1.7 THE IMPUGNED REPEALS AND AMENDMENTS ARE ARBITRARY ........................... 19

3.1.2. THE UNIFORM CIVIL CODE IS IN VIOLATION OF ARTICLES 19 AND 21 OF THE

CONSTITUTION OF INDIA ................................................................................................... 22

3.1.2.1 THERE IS VIOLATION OF ARTICLE 21 OF THE CONSTITUTION............................... 22

3.1.2.2 THERE IS VIOLATION OF EXPRESSION AS ENVISAGED UNDER ARTICLE 19 OF

3.2. THERE IS INFRINGEMENT OF THE PRINCIPLES OF DEMOCRACY ................................. 24

PRAYER ................................................................................................................................ XXVI

-MEMORIAL ON BEHALF OF THE APPELLANTS-

AIR All India Reporter

ALD Andhra Legal Decision