Arguments - Petitioner ULC

Arguments- Petitioner
[1] That the Ordinance titled The Uniform Marriage Reforms (Amendment) Ordinance
2021 is not valid in the light of Article 14, 19, 21 and 25 of the Constitution of Jimland.
It is humbly submitted before this Hon’ble Court that the said Ordinance is Unconstitutional
in light of Article 141, 192, 213 and 254 of the Constitution. The aforementioned contention
rests on the ground that, first, it does not satisfy the ‘Strict Scrutiny Test’, second, it violates
the Fundamental Right conferred under Article 25, third, it is manifestly arbitrary and is
violative of Article 14 and fourth, it discriminates on the basis of sex and is violative of
Article 15. Therefore, the impugned Ordinance is unconstitutional and ought to be set aside.
1.1 The Ordinance does not satisfy the ‘Strict Scrutiny test’.
It is imperative to state that the effect of the said Ordinance would bring criminality over
every inter-faith marriage and conversion and would thus create a psychological deterrent
against individual liberty and thus does not satisfy the ‘Strict scrutiny test’.
Apex Court in the case of Anuj Garg & Ors vs Hotel Association Of India & Ors5 held that,
“ It is to be borne in mind that legislations with pronounced “protective discrimination” aims,
such as this one, potentially serve as double-edged swords. A strict scrutiny test should be
employed while assessing the implications of this variety of legislation. Legislation should
not be only assessed on its proposed aims but rather on the implications and the effects.”
The Supreme Court has also observed that just because legislation is facially neutral does not
mean it is Constitutional. It observed that “Even though Section 377 is facially neutral, it has
been misused by subjecting members of the LGBT community to hostile discrimination,
making them vulnerable and living in fear of the ever-present threat of prosecution on
account of their sexual orientation”.6The impugned legislation creates a subjective
1 The Constitution of India, 1950.

2 Ibid.
3 Ibid.
4 Ibid.
5 Anuj Garg & Ors vs Hotel Association Of India & Ors MANU/SC/8173/2007 : (2008) 3 SCC 1
6 Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. MANU/SC/0947/2018.
satisfaction in the hands of the authorities and would thus result in ideological conformity and
the downfall of liberty enshrined in the Constitution. The provisions of the legislation would
be a deterrence for every voluntary conversion or any inter-faith marriage and thus would
have an implication on the personal liberty7 of an individual.
The language used in Section 4, which penalises marriage for unlawful conversion or vice
versa when accompanied with Section 5(ii) which gives indiscriminate power to the police
personnel to arrest on the presumption of contravention of the provisions would result in
rampant misuse. Thus, it violates the right of an individual to choose his/her faith 8 and
restricts Personnel choice and individual autonomy and the right to human dignity and all that
goes along with it.9
The impugned legislation fails the ‘Strict Scrutiny Test and violates Article 21 of the
Constitution.
[1.2] The impugned legislation is in violation of Article 25 of the Constitution.
It is pertinent to note that the impugned legislation is violative of the right of freedom of
Conscience and Religion under Article 25 of the Constitution. Its ramifications would
concomitantly lead to curb the rights to profess any new religion of one’s choice. The
Ordinance would require every religious conversion or an inter-faith marriage to be
scrutinized by the state. The very concept of forcing an individual to explain and justify a
decision which is closely personal to him/her is contrary to Constitutionalism.
7 The Constitution of India,1950.

8 Shafin Jahan vs. Asokan K.M. and Ors. MANU/SC/0340/2018.
9 Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors. MANU/SC/0517/1981.
The Supreme Court in the case of Shafin jagan vs Asokan 10 while dealing with the aspect of
conversion and religion held that,
“Deprivation of that freedom which is ingrained in choice on the plea of faith is

impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the
freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the
Constitution. Choosing a faith is the substratum of individuality and sans it, the right of
choice becomes a shadow.”
The state can certainly regulate acts of forced conversion but the starting point of such
regulation has to be a complaint made by the individual who opts to convert. In most of these
cases, it is the parents who complain that their daughter has been fraudulently enticed into a
relationship and is a victim of forced conversion. This makes the Ordinance an instrument of
harassment in situations where interfaith marriages are voluntary and would deprive an
individual of their fundamental right to choose a faith. The consent of the family or the
community or the clan is not necessary once the two adult individuals agree to enter into a
wedlock.11
[1.2.1] Chilling effect on Fundamental Right of Conscience and propagation of Religion.
Such a law in its implementation would have a chilling effect on fundamental rights. To
quote what Justice Chandrachud in his concurring judgment in Hadiya’s case 12 said,
“Interference by the State in such matters has a seriously chilling effect on the exercise of
freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may
result upon the free exercise of choice. The chilling effect on others has a pernicious tendency
to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of
State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as
destructive of freedom and liberty. Fear silences freedom.”
11 Shakti Vahini v Union of India (2018) 7 SCC 192.

12 Ibid
The right conferred by the constitution to an individual to choose his faith voluntarily, the
right to propagate his religion with a bona fide intention and manner and to choose his partner
without any kind of interference by the state or any individual is deterred by the ramifications
of the provisions given in the impugned Ordinance.
Therefore, the impugned Ordinance violates the Fundamental right to propagate, practice and
profess faith of one’s choice and has a chilling effect on the aforesaid Fundamental Right.
[1.3] Ordinance is manifestly arbitrary and violative of Article 14.
It is pertinent to note that the impugned Ordinance is in violation of Right to Equality

enshrined in Article 14 of the Constitution. Equality is a dynamic concept with many aspects
and dimensions and it cannot be confined within traditional and doctrinaire limits. It is well
settled law that Article 14 strikes at arbitrariness because any action that is arbitrary, must
necessarily involve negation of equality.13
The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would
apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest
arbitrariness, therefore, must be something done by the legislature capriciously, irrationally
and/or without adequate determining principle. Also, when something is done which is
excessive and disproportionate, such legislation would be manifestly arbitrary.14
The legislation in hand satisfies all the aforementioned grounds to be adjudged as manifestly
arbitrary. The determining principle as to what would be termed as an unlawful conversion
according to the provisions of the Ordinance is vague and overt and would result in abuse of
power which is in possession of few. It will be irrational to grant such discretion along with
the power to arrest anyone on the mere notion of presumption of contravention of the
provisions and thus giving them arbitrary power.
13 Ajay Hasia v Khalid Mujib Seharavadi, (1981) 1 SCC 722.

14Shayara Bano and Ors. vs. Union of India (UOI) and Ors. MANU/SC/1031/2017
(2017) 9 SCC 1.
Therefore, the impugned legislation is manifestly arbitrary and hence violative of Article 14
of the Constitution.
[1.4]Ordinance violative of Article 15 of the Constitution.
It is pertinent to note that the impugned Ordinance is violative of Article 15 of the

Constitution as clause 3 of the impugned Ordinance discriminates only on the basis of sex.
The non-recognition of marriage among homosexuals violates the rights guaranteed under
Article 15(1) of the Constitution of India.
Article 15(1) in the Constitution of India reads as, “The State shall not discriminate against
any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.
Further, Apex Court in the Navtej Singh Johar Case 15 ruled that ‘Section 377 criminalizes
behaviour that does not conform to the heterosexual expectations of society. In doing so it
perpetuates a symbiotic relationship between anti-homosexual legislation and traditional
gender roles. The notion that the nature of relationships is fixed and within the ‘order of
nature’ is perpetuated by gender roles, thus excluding homosexuality from the narrative.’ The
Hon’ble Court went on to hold that laws that perpetuate stereotypes riddled with
discrimination are unconstitutional.
In addition to it, the court also held that the Members of the LGBT community are entitled to
the benefit of an equal citizenship, without discrimination, and to the equal protection of
law16; and Members of the LGBT community are entitled, as all other citizens, to the full
range of constitutional rights including the liberties protected by the Constitution 17 which
includes the right to marry to a person of your own choice.18
18 Asha Ranjan v. State of Bihar and others (2017) 4 SCC 397.
The impugned provisions of the Ordinance are based on irrational and discriminatory
stereotype gender roles assigned by the society to man and woman and thus cannot pass the
test of non-discrimination imposed by Article 15(1) of the Constitution. “The majoritarian
morality that dictates that a marital union shall be that of only man and woman and never be
composed of a man and a man OR a woman and a woman has led to the construction of
provisions which are impugned herein”.19 Such provisions to the extent that they refuse to
recognize unions that do not comprise of a man and a woman, fails the test of discrimination
articulated by Article 15 of the Constitution of India.
Therefore, the impugned Ordinance is violative of Article 15 of the Constitution and ought to
be set aside as per Article 13(2)20 as the Ordinance takes away the rights conferred in Part III
of the Constitution as highlighted in the aforementioned lines of argumentation.
[2] RIGHT TO LIFE INCLUDES THE RIGHT TO GET MARRIED TO ANY

PERSON OF ANY SEX OR RELIGION.
It is humbly submitted before this hon’ble court that the right to life under Article 21 includes
the right to get married to any person belonging to any religion or sex. The said contention is
based on three grounds. The said grounds are, first, Non-recognition of marital rights to
same-sex couples is violative of Articel 14 and 15, second, Right to privacy under Article 21
and right to freedom of expression under Article 19 includes the right to choose one’s partner,
third, right to life uner Article 21 includes the right to marry any person of one’s choice
irrespective of one’s religion.
[2.1] NON-RECOGNITION OF MARITAL RIGHTS OF SAME-SEX COUPLES IS

VIOLATIVE OF ARTICLE 14 AND 15.
20 The Constitution of India, 1950.
It is pertinent to note that denying a person the right to marry because of one’s self
determination of sexual identity and does not treat that identity with dignity, disrespects
individual choice and thus is considered irrational and manifestly arbitrary, violating Article
14 of the Constitution of India and is discriminatory under Article 15 of the Constitution. It is
also imperative to note that no fundamental right can be read in isolation and a coherence
needs to be established between the fundamental rights.
The Supreme Court in the case of K.S. Puttaswamy vs Union of India 21, while dealing with
the aspect of reading Article 21 along with other fundamental rights held that:
“The law should be assessed not with reference to its objective rather it should be assessed on
its impact on the fundamental rights. The breakdown of the theory that fundamental rights are
watertight compartments after the Maneka case. The development of the law has followed a
natural evolution, the basis of the development is that every aspect of diverse guarantees of
fundamental rights deals with human beings and the close relationship between each of the
fundamental rights has led to the recognition of constitutional entitlements and the
understanding of compositional nature of fundamental rights under part III of the
Constitution.”
Further, the Supreme Court in the Navtej Singh johar 22 case has held that“ Members of the
LGBTQ community are entitled, like all other citizens, to the full range of constitutional
rights including the liberties protected by the Constitution.” It is also noteworthy to state what
the court had said in the context of constitutional morality, “A person’s sexual orientation is
intrinsic to their being. It is connected with their individuality and identity. A classification
which discriminates between persons based on their innate nature would be violative of their
fundamental rights, and cannot withstand the test of constitutional morality.”
The legislation that does not recognise homosexual marriages on the pretext that the said
legislations only recognise heterosexual marriages in the garb of social morality violates the
21 K S Puttaswamy V Union of India and Ors. (2017) 10 SCC 1.

principles of Constitutional morality23 by denying the institute of marriage to homosexuals
and thus fails to respect the individuality and identity of homosexuals and discriminates
against them by excluding them from the institution of marriage, denying their
constitutionally guaranteed rights. This action would result in denying them the basic
fundamental and human rights to association and would thus degrade them to second-grade
citizens thus cannot pass the test of non-discrimination imposed by Article 15(1) of the
Constitution.
24
The Supreme Court in Navtej Johar has held that sexual orientation places a positive and
negative obligation on the State, which includes non-discrimination under Article 15 of the
Constitution. Positive obligations call for the State to “recognise rights which bring true
fulfilment to same-sex relationships.” The right to choose a marital partner is a positive
obligation of the State to be fulfilled through its existing marriage laws.
Thus the non-recognition of homosexual marriage is violative of Article 14 as it is arbitrary

and there is no reasonable classification to determine the nexus to the object sought to be
achieved. This will kill the idea of transformative constitutionalism which, as held by the
Hon’ble Supreme Court, in Navtej Singh johar25 case, ‘not only includes within its wide
periphery the recognition of the rights and dignity of individuals but also propagates the
fostering and development of an atmosphere wherein every individual is bestowed with
adequate opportunities to develop socially, economically and politically. Discrimination of
any kind strikes at the very core of any democratic society.’
[2.2] RIGHT TO PRIVACY UNDER ARTICLE 21 AND FREEDOM OF

EXPRESSION UNDER ARTICLE 19(1) INCLUDES THE RIGHT TO MARRY A
PERSON OF ONE’S CHOICE.
23 https://www.jurist.org/commentary/2020/10/paras-sharma-india-same-sex-marriage/
24 http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-
C742B9DB217D.pdf
It is pertinent to note that the right to privacy which is implicit under Article 21 of the
Constitution of India is violated by denying access to the institution of marriage recognized
by law to same-sex couples.
The Hon’ble Supreme Court, in K.S.Puttaswamy vs. Union of India26 had held that:
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family
life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to
be left alone. Personal choices governing a way of life are intrinsic to privacy. Privacy
protects heterogeneity and recognises the plurality and diversity of our culture. While the
legitimate expectation of privacy may vary from the intimate zone to the private zone and
from the private to the public arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public place. Privacy attaches to the person
since it is an essential facet of the dignity of the human being”.
It is noteworthy to state what the Apex Court had stated in the case of Shafin Jahan vs Union
of India. It held that “The choice of a partner whether within or outside marriage lies within
the exclusive domain of each individual. Intimacies of marriage lie within a core zone of
privacy, which is inviolable. The absolute right of an individual to choose a life partner is not
in the least affected by matters of faith. Social approval for intimate personal decisions is not
the basis for recognising them”.27
In R. Rajagopal v. State of Tamil Nadu and Ors 28, while discussing the concept of the right to
privacy, it held that the "right to be let alone", for a citizen has a right to safeguard the
privacy of his/her own, his/her family, marriage, procreation, motherhood, child-bearing and
education, among other matters.
26 K.S.Puttaswamy vs. Union of India (2017) 10 SCC 1.

28 R. Rajagopal and Ors. vs. State of Tamil Nadu and Ors. MANU/SC/0056/1995.
The above authorities capture the essence of the right to privacy. There can be no doubt that
an individual also has a right to a union Under Article 21 of the Constitution. 29 Same-sex
couples are denied their right to privacy which is implicit under Article 21 of the Constitution
of India by denying them access to the institution of marriage recognized by law. For that
right to privacy is not merely the right to be left alone. The right to privacy been extended to
protecting an individual's interests in making vital personal choices such as the rights of same
sex couples— including the right to marry; rights as to procreation, contraception, general
family relationships, child-bearing, education, data protection, etc.
Non-recognition of the marriage of homosexuals is an attack on individuality and autonomy

which are essential to the right to privacy guaranteed to an individual. The Constitution-
makers could not have envisaged that each and every human activity be guided, controlled,
recognised or safeguarded by laws made by the legislature. 30 Article 21 has been incorporated
to safeguard those rights and a constitutional court cannot be a mute spectator when those
rights are violated but is expected to safeguard those rights knowing the pulse and feeling of
that community, though a minority, especially when their rights have gained universal
acceptance and recognition. 31
Therefore, the Right to privacy includes the right to marry a person of one’s choice which
includes same-sex marriages and hence it an intrinsic part of Article 21 of the Constitution.
[2.2.1] NON-RECOGNITION IS VIOLATIVE OF THE RIGHT TO FREEDOM OF

EXPRESSION UNDER ARTICLE 19.
Article 19(1)(a) guarantees freedom of speech and expression of all citizens including
expression of choice of partner. For that a meaningful expression of a choice of partner in a
society like India that socially places the institution of marriage on a pedestal cannot be
attained if same sex couples do not have the option to legally solemnize their union.
30 National Legal Services Authority vs. Union of India (UOI) and Ors. MANU/SC/0309/2014.
31 Ibid.
The Hon’ble Supreme Court in a wide array of cases has upheld the right of choice of partner
as a facet of the freedom of expression. In the landmark judgement in the case of Shakti
Vahini v. Union of India32, it was held that the right to select a life partner is a fundamental
right. The court held that the right to marry a person of one’s choice is a fundamental right
under Article 21, 19(1)(a) and 14 of the Constitution of India. Freedom of speech and
expression coupled with life and personal liberty manifest the right to choose each other as
life partners. Once the fundamental right is inherent in a person, then no one can scuttle such
right by leaning on any kind of philosophy, moral or social, or self-proclaimed elevation.
The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of
where there is erosion of choice.33 If the right to express one's own choice is obstructed, it
would be extremely difficult to think of dignity in its sanctified completeness.34
Gender identity has also been recognised as an aspect of expression under Article 19(1)(a).
The court has held that “values of privacy, self identity,autonomy and personal integrity are
fundamental rights guaranteed to members of transgender community under article 19(1)(a)
and state is bound to protect and recognise those rights.” 35
Denial of the institution of marriage and the refusal of law to recognize and accept
homosexual marital unions is a violation of their right to freedom of expression guaranteed
under Article 19(1)(a).36 The right to expression of love in the form that they aspire to
conduct will be meaningless if their marital union is not recognized by law. 37 When two
adults marry out of their volition, they choose their path; they consummate their relationship;
they feel that it is their goal and they have the right to do so. And it can unequivocally be
stated that they have the right and any infringement of the said right is a constitutional
violation.38
32 Shakti Vahini v. Union of India, (2018) 7 SCC 192.
33 Safiya Sultana and Ors. vs. State of U.P. and Ors. MANU/UP/0011/2021.
35 National Legal Service Authority v Union of India, (2014)5 SCC 438.
36http://docs.manupatra.in/newsline/articles/Upload/7A93092D-3017-413A-AB4E-
4D7A1752A854.%20Nussbaum.pdf
37 https://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?article=1268&context=uhp_theses
Freedom of expression which flows from one’s sexual orientation includes the right to
exercise inherently individual choices regarding whether or not to marry, whether to marry a
particular person or not irrespective of the person's gender cannot be contrary to public order,
decency or morality.
Expression of love, growth of one’s personality within a relationship and development of an

identity of union will be incomplete if the law refuses to recognize same sex marriages and
thereby it affects the Article 19(1) rights guaranteed by Article 19(1)(a) of the Constitution of
India.
[2.3] THAT RIGHT TO LIFE INCLUDES RIGHT TO MARRY ANY PERSON

BELONGING TO ANY RELIGION.
It is pertinent to note that the right to life includes the right to marry any person belonging to
any religion and the right to choose a partner irrespective of one’s religion is an inherent right
under the governing constitutional principles.39
The Supreme Court in plenty of cases as discussed above had reiterated the principle that the
right to life and personal liberty under Article 21 entails the right to marry any person
belonging to any religion or sex. Every person has the right to choose their partner
irrespective of one’s religion and is part of the individualistic entity of a person and the
constitutional morality triumphs over social morality in case of conflict, if any. 40
While dealing with the issue of inter-faith marriage, the Supreme Court laid down the
governing principle for the aforesaid cases. It held that, “Deprivation of that freedom which is
ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to
his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy;
and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of

40 https://www.scconline.com/blog/post/2018/02/28/womens-religious-rights-inter-religious-marriages/
individuality and sans it, the right of choice becomes a shadow. It has to be remembered that
the realization of a right is more important than the conferment of the right. Such
actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal
supremacy. It is so because the individualistic faith and expression of choice are fundamental
for the fructification of the right. Thus, we would like to call it an indispensable preliminary
condition.”
In the case of Lata Singh v. State of Uttar Pradesh 41, it was held that Right to Marriage is an
essential part of the right under Art.21 and that people have the right to choose their partners
without any compulsion.
It was stated in this case, “This is a free and democratic country, and once a person becomes
a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not
approve of such inter-caste or inter-religious marriage the maximum they can do is that they
can cut off social relations with the son or the daughter, but they cannot give threats or
commit or instigate acts of violence and cannot harass the person who undergoes such inter-
caste or inter- religious marriage.”
It is evident from the aforementioned cases that the right to choose one’s partner comes
within one’s autonomy and is intrinsic to one’s life and personal liberty. Any interference
from any individual or state in the name of social morality would result in violation of this
freedom.42
Therefore, Right to life under Article 21 includes the right to get married to any person
belonging to any religion or sex.
41 Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522.

42 http://www.ijhssi.org/papers/v6(6)/Version-2/I0606024953.pdf
[3] THE COURT OF LAWS IS PERMITTED TO ISSUE A RESTRAINING ORDER
AGAINST THE PRESS IN THE LIGHT OF ARTICLE 19 OF THE CONSTITUTION.
It is humbly submitted before this hon’ble court that the court of law is permitted to issue
restraining order against the press under the purview of Article 19. The said contention is
based on threefold of arguments, first, that the hon’ble court derives the jurisdiction to pass
restraining order under the Article 129 and 142(2) of the constitution. Second, that such
restraining orders could only be passed to balance conflict amongst the fundamental rights in
order to provide complete justice and fair trial. Third, that the right to privacy cannot be
trampled by the freedom of speech and expression.
[3.1] THAT THE COURT HAS THE JURISDICTION TO PASS RESTRAINING

ORDER AGAINST THE PRESS.
It is pertinent to note that the court has the power to restrain the media in light of power given
to the court under Article 19(2) read with Article 129 of the Constitution to see that the
administration of justice is not obstructed or interfered with.
The Supreme Court in the catena of cases has held in the favour of the above proposition. In
the case of Sahara India Real Estate Corpn. Ltd v SEBI43, the court ruled that:
“Under Article 19(2) read with the first part of Article 129 and Article 215, power is
conferred on the High Court and the Supreme Court to see that the administration of justice is
not perverted, prejudiced, obstructed or interfered with, which includes power of the Supreme
Court/High Court to prohibit temporarily statements being made in the media which would
prejudice or obstruct or interfere with the administration of justice.”
Further, in the case of Swatanter Kumar vs. The Indian Express Ltd 44. and Ors., Hon’ble
Delhi High Court while relying on the case of Supreme Court Bar Association vs. Union of
India45 and Naresh Shridhar Mirajkar and Ors. vs. State of Maharashtra and Ors.,46 held that,
43 Sahara India Real Estate Corpn, Ltd v SEBI (2012) 10 SCC.

44 Swatanter Kumar vs. The Indian Express Ltd. and Ors. MANU/DE/0104/2014.
45 Supreme Court Bar Association vs. Union of India [MANU/SC/0291/1998 : (1998) 4 SCC 409].
46 Naresh Shridhar Mirajkar and Ors. vs. State of Maharashtra and Anr. MANU/SC/0044/1966.
“As such, a declaration has been made in the Constitution that the said powers cannot be
taken away by any law made by the Parliament except to the limited extent mentioned in
Article 142(2) in the matter of investigation or punishment of any contempt of itself. If one
reads Article 19(2) which refers to law in relation to Contempt of Court with the first part of
Article 129 and Article 215, it becomes clear that the power is conferred on the High Court
and the Supreme Court to see that "the administration of justice is not perverted, prejudiced,
obstructed or interfered with.”
It is evident from, not limited to the aforementioned precedents, that the court has the power
to restrict freedom of speech and expression as envisaged in Article 19(1)(a) of the
Constitution in respect of the restriction as laid down in Article 19(2). Article 141 uses the
phrase "law declared by the Supreme Court." It means law made while interpreting the
statutes or the Constitution.47 Such judicial law-making is part of the judicial process. Further
under Article 141, law-making through interpretation and expansion of the meanings of open-
textured expressions such as "law in relation to contempt of court" in Article 19(2), "equal
protection of law", "freedom of speech and expression" and "administration of justice" is a
legitimate judicial function.48
Hence, the Court has the jurisdiction to pass such restraining orders against the media as
necessitated to prevent any interference with administration of justice as it deems fit.
[3.2] SUCH RESTRAINING ORDER ARE ONLY TO BALANCE CONFLICT

BETWEEN RIGHTS IN PART III OF THE CONSTITUTION.
It is pertinent to note that although freedom of speech and expression is a fundamental right,
but the said right is not absolute and a balance is ought to be achieved between this freedom
and rights conferred to an individual under Article 21.
The Supreme Court while dealing with the issue of conflict between the freedom of speech
and expression and rights conferred under Article 21 in the Sahara India case, held that,
“Such orders of postponement of publicity shall be passed for a limited period and subject to

48Sahara India Real Estate Corpn, Ltd v SEBI (2012) 10 SCC.
the courts evaluating in each case the necessity to pass such orders not only in the context of
administration of justice but also in the context of the rights of the individuals to be protected
from prejudicial publicity or misinformation, in other words, where the court is satisfied that
Article 21 rights of a person are offended.”49
It further held that, “When rights Same time of equal weight clash, the Courts have to evolve
balancing techniques or measures based on recalibration under which both the rights are
given equal space in the constitutional scheme and this is what the postponement order does,
subject to the parameters mentioned herein. High Court/Supreme Court (being courts of
record) pass postponement orders under their inherent jurisdictions, such orders would fall
within reasonable restrictions under Article 19(2) and which would be in conformity with
societal interests. Balancing equal public interest by order of postponement of publication or
publicity in cases in which there is real and substantial risk prejudice to the proper
administration of justice or to the fairness of trial and within the above enumerated
parameters of necessity and proportionality would satisfy the test of reasonableness in
Articles 14 and 19(2). Such orders of postponement are only to balance conflicting public
interests or rights in Part III of the Constitution. They also satisfy the requirements of
justification under Article 14 and Article 21.”50
The Supreme Court in the Manu Sharma51 case further outlined the dangers of a "media trial"
and “frenzy reportage”. It observed that there existed a serious risk of prejudice being caused
if the media exercised unrestricted and unregulated freedom in so far as carrying out parallel
trial procedures without being held up to any standard.
The balance between transparency and confidentiality is very delicate and if some sensitive
information about a particular person is made public, it can have a far-reaching impact on
his/her reputation and dignity.52 freedom of press flows from the citizens’ right to know,
which is conceived to be paramount.53 The Hon’ble Supreme Court of India, through several
of its decisions on fundamental rights, has developed this jurisprudence.54

50 Ibid.
51 Manu Sharma v. State (NCT of Delhi); (2010) 6 SCC 1
52 Advocate on Record Association V Union of India
53 https://thedailyguardian.com/the-case-of-sc-gag-order-against-sudarshan-news/
54 https://thedailyguardian.com/the-case-of-sc-gag-order-against-sudarshan-news/
But such freedom cannot trample upon the freedom guaranteed to an individual under part III
of the constitution. Right to dignity55, Right to Reputation56 and Right to Fair Trial57 has been
stated to be part of life and personal liberty through various judicial precedents which could
be prejudiced if freedom of speech and expression is termed to be absolute and the press is
given unabridged licence in the garb of freedom of speech. Article 19(1)(a) cannot be pressed
into service for defeating the fundamental right guaranteed by Article 21.58
Therefore, restrictions such as postponement order are necessitated to preserve the cherished
fundamental rights ensured in Article 21 of the Constitution and to create a balance between
freedom of speech and individual rights.
[3.3] RIGHT TO PRIVACY CANNOT BE TRAMPLED BY FREEDOM OF SPEECH

AND EXPRESSION.
It is imperative to note that the Courts can pass restraining orders on the press in light of the
Right to privacy of an individual under Article 21 of the Constitution.
In the landmark judgement of K.S Puttaswamy v Union of India59, Court ruled that,
“ Privacy includes at its core the preservation of personal intimacies, the sanctity of family
life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to
be left alone. Privacy safeguards individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life. Personal choices governing a way of life
are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and
diversity of our culture. While the legitimate expectation of privacy may vary from the
intimate zone to the private zone and from the private to the public arenas, it is important to
underscore that privacy is not lost or surrendered merely because the individual is in a public
place.”
55Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors. MANU/SC/1094/2018.
56 State of Bihar v. Lal Krishna Advani (2003) 8 SCC 261.
57 Rattiram v. State of Madhya Pradesh, AIR 2012 SC 1485.
58 In Re: Noise Pollution - Implementation of the Laws for restricting use of loudspeakers and high volume
producing sound systems MANU/SC/0415/2005.
59 K.S Puttaswamy v Union of India
Relying on the aforementioned line of reasoning, Madras High Court in a recent case of
Kanimozbi Karunanidhi v. Thini P.Varadarajan 60 held that, “The theory that there cannot be a
prior restraint or a gag order upon the press or media stands diluted, after the judgement of
the Puttaswamy case. The observation of Hon’ble Mr. Justice Sanjay Kishan Kaul, extracted
shows that the media in the guise of public interest publish anything and everything, which
may be interesting.”
The right to know is not a fundamental right but at best it is an implicit fundamental right and
it is hedged in with the implicit fundamental right to privacy that people enjoy. 61 Unabridged
power of the media can become dangerous if check and balance is not inherent in it. This
power must be carefully regulated and must reconcile with the fundamental right to privacy. 62
Right to free speech is a very valuable right in a democracy, but there can be reasonable
restrictions on the said right also and the very fact that the right to privacy has been held to be
a constitutional right, the right to privacy by itself would be a reasonable restriction on the
right to free speech. When an individual’s privacy is prejudiced by the said freedom of
media, then the person would have the right to preserve his privacy in matters related to one’s
personal life as stated by the court in the aforesaid case.
Therefore, in light of privacy being a constitutional right of an individual, one has a right to
preserve that right and a balance ought to be struck between the said freedom and the right to
speech.
[4] WHETHER THERE IS ANY PROHIBITION IN ANY LAW FOR PEOPLE TO

COME TOGETHER AND PRACTICE, PROFESS AND PROPAGATE A NEW
RELIGION OF THEIR CHOICE.
60 Kanimozbi Karunanidhi v. Thini P.Varadarajan, Madras High Court.

61 Advocate on record association V Union of India
62 Sanjay Narayan Editor in Chief Hindustan v High Court of Allahabad, 2011 (13) SCC 155.
[4.1] EVERY PERSON HAS THE RIGHT TO CHOOSE THEIR RELIGION UNDER
ARTICLE 25.
It is pertinent to note that the Constitution in light of Article 25 guarantees each and every
individual to the freedom of conscience and free profession, practice and propagation of
religion of one’s choice and can only be restricted on grounds provided in Article 25 and not
on any extraneous grounds.
The Supreme Court in the case of Ratilal Panachand Gandhi v. State 63 of Bombay clarified
this provision by holding that:
“Every person has a fundamental right under our Constitution not merely to entertain such
religious belief as may be approved of by his judgment or conscience but to exhibit his belief
and ideas in such overt acts as are enjoined or sanctioned by his religion and further to
propagate his religious views for edification of others.”
In the impugned case, conversion to the Samahsutra religion is well within the freedom as
envisaged in Article 25 and its beliefs and practices cannot be viewed with a narrow lens of
the morality and ethics dictated by the majority. Such morality has its own place, but it
cannot prevail over constitutional morality,64 which gives every person to choose the faith of
their choice. To profess a religion means the right to declare freely and openly one’s faith.65
The chain of facts clearly establishes the point that the religion of Samahsutra has been
existing from time immemorial and has been recognised as an established religion in the
country of Jimland and has gained popularity because it provides a liberating haven from a
conflicted, troubled and an unequal society. Hence, it cannot be restricted on the ground that
its rituals and beliefs do not conform to the established norms of the majority.
63 Ratilal Panachand Gandhi v. State of Bombay,1954 SCR 1035.

64 Navtej Singh Johar vs Union of India.
65 Punjabrao v D.P. Meshram AIR 1965 SC 1179.
[4.2] BONA FIDE CONVERSION IS VALID IN THE EYES OF LAW.
It is pertinent to note that the freedom of propagation, profess and practice of a new religion
of one’s choice is valid and in order to do that the conversion should be in a good faith and
the basis of bonafide conversion to a faith of one’s choice is converting with free will and
choosing faith voluntarily without any allurement.
In the case of Shafin Jahan v Asokan PM 66, the hon’ble Supreme Court while dealing with
the issue of conversion for the sole purpose of marriage, held that:
“The Constitution guarantees to each individual the right freely to practise, profess and
propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie
within an area where individual autonomy is supreme…Neither the state nor the law can
dictate a choice of partners or limit the free ability of every person to decide on these matters.
They form the essence of personal liberty under the Constitution. Social approval for intimate
personal decisions is not the basis for recognising them”
The determining factor for a valid conversion would be a bona fide intention accompanied by
subsequent conducts unequivocally expressing that intention would be sufficient to reach the
conclusion that genuine conversion takes place. 67 In the present case, there is no factual
circumstance to showcase that the said conversions were being down under the guise of
coercion, misrepresentation or with any mala fide intention.
Even if the conversion was being done to soleminise marriage between same-sex, it cannot be
termed as an illegetimate conversion on the said ground because it is a matter of an
individuals personal choices and intimacies done with free will. As already argued in line of
argumentation under issue 2 of the written submissions, right to choose a partner irrespective
of one’s religion or sex is a fundamental right and the Constitutional provisions recognise the
same as a basic human right.
Therefore, Conversion for the sole purpose of marriage is a legitimate form of conversion in
the eyes of the law.
66 Shafin Jahan v. Asokan P.M. and Ors., MANU/SC/0340/2018.

67 235th Law Commission Report on Conversion/ Reconversion to Another Religion.
[4.3] India being a secular state gives equal status to all religions.
It is imperative to state at this junture that there is no prohibition in any law for people to
come together and practice, profess and propagate a new religion of their choice because
Jimland being a secular state, the state owns allegience to no one religion which means that it
neither follows nor propogates any particular religion and hence provides equal status to all
the religions, without any discrimination.
While dealing with the concept of ‘secularism’ in detail, the Supreme Court in S.R Bommai
v. Union of India68 held that,
“Religious tolerance and equal treatment of all religious groups and protection of their life
and property and the places of their worship are an essential part of secularism enshrined in
our constitution. while the citizen of this country are free to profess, practice and prorogate
such religion, faith or belief as they choose, so for as the state is concerned i.e. from the point
of view of the state, the religion, faith or belief of a person is immaterial to it, all are equal
and all are entitled to be treated equally.”
In the present case, the very notion of putting unreasonable strictures upon individuals who
profess and practice the Samahasutra religion goes against the concept of secularism as
enshrined in the preamble of our Constitution. Jimland as a pluralistic country recognises and
respects all religions equally and if anything is done contrary to it, it will be against the
concept of constitutionalism and would be violative of the basic structure doctrine. If the
social morality and ethos of the majority is imposed upon the minority, then it will be against
the basic concept of secularism which respects all regions alike. Equality between citizens is
after all, a powerful safeguard to preserve a common universe of liberties between citizens,
including in matters of religion69. Combined together, individual liberty, equality and
fraternity among citizens are indispensable to a social and political ordering in which the
dignity of the individual is realised.70
68 S.R. Bommai v. Union of India, 1994 AIR SC 1918.

69 Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors. MANU/SC/1094/2018.
70 Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors. MANU/SC/1094/2018.
Therefore, imposition of strictures upon the Samahsutra religion goes agaisnt the concept of
secularism and ought to be given full recognition.
Moreover in Ahmedabad St. Xavier’s College v. State of Gujarat 71, the Supreme Court
held that secularism just ensures that no one is differentiated on the basis of religion,
eliminating the concept of God in matters of the state.
71 Ahmedabad St. Xavier’s College v. State of Gujarat 1974 AIR 1389

In another case of Express Newspapers Pvt. Ltd. & Ors vs. Union Of India,
AIR 1986 SC 872, the Supreme Court speaking through A.P. Sen, J.
emphasized that though the freedom of press is an inalienable right, but the
same is not absolute and is subject to Article 19 (2) as uncontrolled right to
speech leads to anarchism.
An order of postponement has to be passed only when other alternative measures such as
change of venue or postponement of trial are not available. In passing such orders of
postponement, the courts have to keep in mind the principle of proportionality and the test of
necessity. The applicant who seeks an order of postponement of publicity must displace the
presumption of open justice f and only in such cases shall the higher courts pass the orders of
postponement under Article 129/Article 215 of the Constitution. Such orders of
postponement of publicity shall be passed for a limited period and subject to the courts
evaluating in each case the necessity to pass such orders not only in the context of
administration of justice but also in the context of the rights of the individuals to be protected
from prejudicial publicity or misinformation, in other words, where the court is satisfied that
Article 21 rights of a person are offended. There 9 is no general law for courts to postpone
publicity, either prior to adjudication or during adjudication as it would depend on facts of
each case. The necessity for any such order would depend on the extent of prejudice, the
effect on individuals involved in the case, the overriding necessity to curb the right to report
judicial proceedings conferred on the media under Article 19(1)(a) of the Constitution and the
right of the media to challenge the order of postponement. (Para 34) Ranjitsing
Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294: 2005 SCC (Cri) 1057; R.
Rajagopal v. State of T.N.. (1994) 6 SCC 632. relied on
Publicity postponement orders should be seen in the context of Article 19(1)(a) as not being
an absolute right. The US clash model based on collision between freedom of expression
(including free press) and the right to a fair trial will not apply to the Indian Constitution. In
certain cases, even the accused seeks publicity (not in the pejorative sense) openness and
transparency is the basis of a fair trial in which all the stakeholders who are a party to a
litigation including the Judges, are under scrutiny and at the s people get to know what is
going on inside the courtrooms. These aspects come within the of Article 19(1) and Article
21 of the Constitution. When rights Same time of equal weight clash, the Courts have to
evolve balancing techniques or measures based on recalibration under which both the rights
are given equaL space in the constitutional scheme and this is what the postponement order
does, subject to the par e parameters mentioned herein.
The presumption of open justice has to be balanced with the presumption of innocence which
is now recognised as a human right. These presumptions existed at the time when the
Constitution was framed [existing law under Article 19(2)] and they continue till date not
only as part of rule of law under Article 14 but also as an Article 21 right. The constitutional
protection in Article 21 which protects the rights of the person for a fair trial is, in law, a
valid restriction operating on the right to free speech under Article 19(1)(a), by virtue of force
of it being a constitutional provision. Given that the postponement orders curtail the freedom
of expression of third parties, such orders have to be passed only in cases in which there is
real and substantial risk of prejudice to fairness of the trial or to the proper administration of
justice which is the end and urpose of all laws. purpose of (Para 42)
However, such orders of postponement should be ordered only for a limited duration and
without disturbing the content of the publication They should be passed only when necessary
to prevent real and substantial risk to the fairness of the trial (court proceedings), if
reasonable alternative methods or measures such as change of venue or postponement of trial
will not prevent the said risk and when the salutary effects of such orders outweigh the
deleterious effects to the free expression of those affected by the prior restraint. The order of
postponement will only be appropriate in cases where the balancing test otherwise favours
non-publication for a limited period. It is not possible for the Court to enumerate categories
of publications amounting to contempt. It would require the courts in each case to see the
content and the context of the offending publication. There cannot be any straitjacket formula
enumerating such categories. (Para 42)
If the High Court/Supreme Court (being courts of record) pass postponement orders under
their inherent jurisdictions, such orders would fall within reasonable restrictions under Article
19(2) and which would be in conformity with societal interests. Balancing equal public
interest by order of postponement of publication or publicity in cases in which there is real
and substantial risk prejudice to the proper administration of justice or to the fairness of trial
and within the above enumerated parameters of necessity and proportionality would satisfy
the test of reasonableness in Articles 14 and 19(2). Such orders of postponement are only to
balance conflicting public interests or rights in Part III of the Constitution. They also satisfy
the requirements of justification under Article 14 and Article 21. (Para 42)
of
Ministry of Information & Broadcasting v. Cricket Assn. of Bengal, (1995) 2 SCC 161;
Maneka Gandhi v. Union of India. (1978) 1 SCC 248; Society for Unaided Private
23The Constitution Framers were fully aware of the institution of contempt under the
common law which they have preserved as "existing law" under Article 19(2) read with
Article 129 and Article 215 of the Constitution. They were aware that the law of contempt is
only one of the ways in which administration of justice is protected, preserved and furthered.
Articles 129 and 215 are in two parts. These articles save the pre existing powers of the
Courts as courts of record and that the power includes the power to punish for contempt. A
declaration has been made in the Constitution that the said powers cannot be taken away by
any law made by Parliament except to the limited extent mentioned in Article 142(2)
In Mirajkar, this Court referred to the principles governing Courts of Record under Article
215. It was held that the High Court is a Superior Court of Record and that under Article 215
it has all the powers of such a Court including the power to punish contempt of itself. At this
stage, the word "including" in Article 129 /Article 215 is to be noted. It may be noted that
each of the Articles is in two parts. The first part declares that the Supreme Court or the High
Court "shall be a Court of Record and shall have all the powers of such a Court". The second
part says "includes the powers to punish for contempt".
Supreme Court Bar Association vs. Union of India [MANU/SC/0291/1998 : (1998) 4 SCC 409].
As such, a declaration has been made in the Constitution that the said powers cannot be taken
away by any law made by the Parliament except to the limited extent mentioned in Article
142(2) in the matter of investigation or punishment of any contempt of itself. If one reads
Article 19(2) which refers to law in relation to Contempt of Court with the first part of Article
129 and Article 215, it becomes clear that the power is conferred on the High Court and the
Supreme Court to see that "the administration of justice is not perverted, prejudiced,
obstructed or interfered with.72
72 Swatanter Kumar vs. The Indian Express Ltd. and Ors. MANU/DE/0104/2014.
The principle of open justice is not absolute! There can be exceptions in the interest of
administration of justice Courts of record under Article 129/ d Article 215 of the
Constitution have inherent powers to prohibit publication of court proceedings or the
evidence of a witness.
The Contempt of Courts Act, 1971 embodies the common law of contempt. The
Constitution Framers were fully aware of the institution of contempt under the common
law which they have preserved as "existing law" under Article 19(2) read with Article
129 and Article 215 of the Constitution. The reason being that contempt is an offence
sui generis. The Constitution Framers were aware that the law of contempt is only one
of the ways in which administration of justice is protected, preserved and furthered.
Articles 129 and 215 are in two parts. These articles save the pre existing powers of the
Courts as courts of record and that the power includes the power to punish for
contempt. A declaration has been made in the Constitution that the said powers cannot
be taken away by any law made by Parliament except to the limited extent mentioned in
Article 142(2) Under Article 19(2) read with the first part of Article 129 and Article 215,
power is conferred on the High Court and the Supreme Court to see that the
administration of justice is not perverted, prejudiced, obstructed or interfered with,
which includes power of the Supreme Court/High Court to prohibit temporarily
statements being made in the media which would prejudice or obstruct or interfere with
the administration of justice
it includes the power of the courts to prevent such acts which interfere, impede or
pervert administration of justice. Presumption of innocence is held to be a finds
infringement of human right. If in a given case the appropriate Court such a
presumption by excessive prejudicial publicity by the newspapers (in general), then
under inherent powers, the courts of record suo motu or on court, can unde approached
or on report being filed before it by the subordinate its inherent powers under Article
129 or Article 215 for a limited period if the applicant is able to t of publication of
postponement of demonstrate substantial risk of prejudice to the pending trial and
provided he is will be on the applicant The test pass orders who seeks such
postponement of offending publication. is that the publication (actual and not planned
publication) must create a real and substantial risk of prejudice to the proper
administration of justice or to the fairness of trial. The principle underlying
postponement orders is that it prevents possible contempt.
● excessive adverse publicity beyond fair reporting not merely injures the
reputation of the person but also affects the fair administration of
justice and in such cases, the inherent power vests with the superior
Courts including High Court to interdict and pass interim orders
including the postponement of the publications as per the well settled
law.
● Judgment passed by the Apex Court in the case of Sahara India Real
Estate Corporation Limited and Others vs. Securities and Exchange
Board of India & Another, (2012) 10 SCC 603 wherein the Supreme
Court has laid down principles governing the passing of the prior
restraint order against the publication in some exceptional cases and
discussed in detailed the exceptions involved.
● Supreme Court in the case of Reliance Petrochemicals Ltd vs.
Proprietors Of Indian Express, (1988) 4 SCC 592 wherein the Supreme
Court had laid down the test governing the grant of the prohibitory
orders against the publication in the context of interference with the
administration of justice which is a real and imminent danger that there
would be such interference with the administration of the justice.
● In another case of Express Newspapers Pvt. Ltd. & Ors vs. Union Of
India, AIR 1986 SC 872, the Supreme Court speaking through A.P. Sen,
J. emphasized that though the freedom of press is an inalienable right,
but the same is not absolute and is subject to Article 19 (2) as
uncontrolled right to speech leads to anarchism.
● Upon fair reading of the aforenoted paragraph of the Sahara India
(supra), it is clear that it is the question of degree of prejudice and its
nexus with fetching the fair justice or open justice which is a potent
factor which is required to be examined and tested by the Courts at the
time of passing of the injunction restraining or postponing the
publication.
● The line between fairness and unfairness is sometimes blurred but if
the same is likely to prejudice the accused and project him as culprit
which may cause irreversible damage to a person, the Court can step in
and assume jurisdiction for future prevention of such damage so that
the administration of the justice is not impaired. Swatanter Kumar vs
The Indian Express Ltd. & Ors. on 16 January, 2014
The judgments in Reliance Petrochemicals Ltd. and Mirajkar were delivered in civil cases.
However, in Mirajkar, this Court held that all Courts which have inherent powers, i.e., the
Supreme Court, the High Courts and Civil Courts can issue prior restraint orders or
proceedings, prohibitory orders in exceptional circumstances temporarily prohibiting
publications of Court proceedings to be made in the media and that such powers do not
violate Article 19(1)(a). Further, it is important to note, that, one of the Heads on which
Article 19(1)(a) rights can be restricted is in relation to "contempt of Court" under Article
19(2). Article 19(2) preserves common law of contempt as an "existing law". In fact, the
Contempt of Courts Act, 1971 embodies the common law of contempt. At this stage, it is
suffice to state that the Constitution framers were fully aware of the Institution of Contempt
under the common law which they have preserved as "existing law" under Article 19(2) read
with Article 129 and Article 215 of Constitution. The reason being that contempt is an
offence sui generis. The Constitution framers were aware that the law of contempt is only one
of the ways in which administration of justice is protected, preserved and furthered. That, it is
an important adjunct to the criminal process and provides a sanction. Other civil Courts have
the power under Section 151 of Code of Civil Procedure to pass orders prohibiting
publication of Court proceedings. In Mirajkar, this Court referred to the principles governing
Courts of Record under Article 215 [see para 60]. It was held that the High Court is a
Superior Court of Record and that under Article 215 it has all the powers of such a Court
including the power to punish contempt of itself. At this stage, the word "including" in
Article 129 /Article 215 is to be noted. It may be noted that each of the Articles is in two
parts. The first part declares that the Supreme Court or the High Court "shall be a Court of
Record and shall have all the powers of such a Court". The second part says "includes the
powers to punish for contempt". These Articles save the pre-existing powers of the Courts as
Courts of record and that the power includes the power to punish for contempt [see Delhi
Judicial Service Association vs. State of Gujarat [MANU/SC/0478/1991 : (1991) 4 SCC 406]
and Supreme Court Bar Association vs. Union of India [MANU/SC/0291/1998 : (1998) 4
SCC 409]. As such, a declaration has been made in the Constitution that the said powers
cannot be taken away by any law made by the Parliament except to the limited extent
mentioned in Article 142(2) in the matter of investigation or punishment of any contempt of
itself. If one reads Article 19(2) which refers to law in relation to Contempt of Court with the
first part of Article 129 and Article 215, it becomes clear that the power is conferred on the
High Court and the Supreme Court to see that "the administration of justice is not perverted,
prejudiced, obstructed or interfered with.
Swatanter Kumar vs. The Indian Express Ltd. and Ors. (16.01.2014 - DELHC) :
MANU/DE/0104/2014
Non-acceptance of their choice would simply mean creating discomfort to the constitutional
right by a constitutional court which is meant to be the protector of fundamental rights. Such
a situation cannot remotely be conceived. The duty of the court is to uphold the right and not
to abridge the sphere of the right unless there is a valid authority of law. 73
73 Safiya Sultana and Ors. vs. State of U.P. and Ors MANU/UP/0011/2021.
The strength of the Constitution, therefore, lies in the guarantee which it
affords that each individual will have a protected entitlement in determining
a choice of partner to share intimacies within or outside marriage.
Shafin Jahan vs. Asokan K.M. and Ors. (09.04.2018 - SC) :
MANU/SC/0340/2018
It is obligatory to state here that expression of choice in accord with law is
acceptance of individual identity. Curtailment of that expression and the
ultimate action emanating therefrom on the conceptual structuralism of
obeisance to the societal will destroy the individualistic entity of a person.
The social values and morals have their space but they are not above the
constitutionally guaranteed freedom. The said freedom is both a
constitutional and a human right. Deprivation of that freedom which is
ingrained in choice on the plea of faith is impermissible. Faith of a person
is intrinsic to his/her meaningful existence. To have the freedom of faith is
essential to his/her autonomy; and it strengthens the core norms of the
Constitution. Choosing a faith is the substratum of individuality and sans it,
the right of choice becomes a shadow. It has to be remembered that the
realization of a right is more important than the conferment of the right.
Such actualization indeed ostracises any kind of societal notoriety and
keeps at bay the patriarchal supremacy. It is so because the individualistic
faith and expression of choice are fundamental for the fructification of the
right. Thus, we would like to call it an indispensable preliminary condition.

● Shafin Jahan vs. Asokan K.M. and Ors. (09.04.2018 - SC) :
MANU/SC/0340/2018
● “Matters of belief and faith, including whether to believe are at the core of
constitutional liberty. The Constitution exists for believers as well as for
agnostics…Matters of dress and of food, of ideas and ideologies, of love and
partnership are within the central aspects of identity….Society has no role to
play in determining our choice of partners,” he added.
● Social approval for intimate personal decisions is not the basis for recognising
them. Indeed, the Constitution protects personal liberty from disapproving
audiences”, his judgement underlined.
● Justice Chandrachud added that the strength of the Constitution lies in its
acceptance of the plurality and diversity of the country’s culture. “The cohesion
and stability of our society depend on our syncretic culture. The Constitution
protects it. Courts are duty bound not to swerve from the path of upholding our
pluralism and diversity as a nation”, he added.
● It has to be sublimely borne in mind that when two adults
consensually choose each other as life partners, it is a manifestation
of their choice which is recognized under Articles 19 and 21 of the
Constitution. Such a right has the sanction of the constitutional law
and once that is recognized, the said right needs to be protected and
it cannot succumb to the conception of class honour or group
thinking which is conceived of on some notion that remotely does not
have any legitimacy.
● Safiya Sultana and Ors. vs. State of U.P. and Ors. (12.01.2021 -
ALLHC) : MANU/UP/0011/2021
● 53. Non-acceptance of her choice would simply mean creating
discomfort to the constitutional right by a constitutional court which
is meant to be the protector of fundamental rights. Such a situation
cannot remotely be conceived. The duty of the court is to uphold the

right and not to abridge the sphere of the right unless there is a valid
authority of law.
It is so as the expression of choice is a fundamental right Under Articles 19 and 21 of the

Constitution, if the said choice does not transgress any valid legal framework. Once that
aspect is clear, the enquiry and determination have to come to an end.
Shafin Jahan vs. Asokan K.M. and Ors. (09.04.2018 - SC) : MANU/SC/0340/2018
Such an orientation or choice that reflects an individual's autonomy is innate to him/her. It is
an inalienable part of his/her identity. The said identity under the constitutional scheme does
not accept any interference as long as its expression is not against decency or morality. And
the morality that is conceived of under the Constitution is constitutional morality.74
● Safiya Sultana and Ors. vs. State of U.P. and Ors. (12.01.2021 - ALLHC) :
MANU/UP/0011/2021
● Denial of the institution of marriage to the Petitioners and the refusal of law to
recognize and accept homosexual marital unions is also a violation of their right to
freedom of expression guaranteed to them by the Constitution of India under Article
19(1)(a) and are thus illegal and constitutional. The petitioners’ right to expression of
love in the form that they aspire to conduct will be meaningless if their marital union
is not recognized by law. Expression of love, growth of one’s personality within a
relationship and development of an identity of union will be incomplete if the law
refuses to recognize same sex marriages and thereby it affects the Article 19(1) rights
of the petitioners guaranteed by Article 19(1)(a) of the Constitution of India.
●
74 Navtej Singh Johar vs union of India

Such an orientation or choice that reflects an individual's autonomy is innate to him/her. It is
an inalienable part of his/her identity. The said identity under the constitutional scheme does
not accept any interference as long as its expression is not against decency or morality. And
the morality that is conceived of under the Constitution is constitutional morality.75
75 Navtej Singh Johar vs union of India

1. RIGHT TO COMPANIONSHIP OR A PARTNER OR OTHERWISE PUT AS
RIGHT TO FAMILY IS A PRE-EXISTING NATURAL LAW RIGHT THAT CAN BE
TRACED TO ARTICLE 19(1)(C)’S GUARANTEE OF A CITIZEN’S RIGHT TO FORM A
UNION AND ARTICLE 21’S RIGHT TO LIFE GUARANTEED TO ANY PERSON.
"44. The concept of liberty has to be weighed and tested on the
touchstone of constitutional sensitivity, protection and the values it
stands for. It is the obligation of the constitutional courts as the
sentinel on qui vive to zealously guard the right to liberty of an
individual as the dignified existence of an individual has an
inseparable association with liberty. Without sustenance of liberty,
subject to constitutionally valid provisions of law, the life of a person
is comparable to the living dead having to endure cruelty and torture
without protest and tolerate imposition of thoughts and ideas without
a voice to dissent or record a disagreement."

law that fails in its duty to protect one’s self determination of sexual
identity and treat that identity with dignity disrespects individual choice
and thus is considered irrational and manifestly arbitrary, violating
Article 14 of the Constitution of India.
2. PETITIONERS ARE DENIED THEIR RIGHT TO PRIVACY WHICH IS

IMPLICIT UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA
3. RIGHT OF AN ADULT TO CHOOSE ONE’S OWN PARTNER IS A

RECOGNIZED FUNDAMENTAL RIGHT UNDER ARTICLE 14 AND 21 OF THE
CONSTITUTION OF INDIA
● In their plea, they have argued that non-recognition of same-sex
marriage violates the principles of equality, individual dignity and

personal autonomy, which is enshrined under Part III of the
Constitution of India.
● “The choice of a partner whether within or outside marriage lies within the
exclusive domain of each individual. Intimacies of marriage lie within a core
zone of privacy, which is inviolable. The absolute right of an individual to choose
a life partner is not in the least affected by matters of faith. The Constitution
guarantees to each individual the right freely to practise, profess and propagate
religion. Choices of faith and belief as indeed choices in matters of marriage lie
within an area where individual autonomy is supreme…Neither the state nor the
law can dictate a choice of partners or limit the free ability of every person to
decide on these matters. They form the essence of personal liberty under the
Constitution”, wrote Justice Chandrachud.
● The right to marry is intrinsic to the liberty which the Constitution
guarantees as a fundamental right, is the ability of each individual to
take decisions on matters central to the pursuit of happiness. Matters
of belief and faith, including whether to believe are at the core of
constitutional liberty.
● LGBTQ Community Entitled to all Constitutional Rights (Navjet Singh
Johar and others v. Union of India 2018):
● The SC held that members of the LGBTQ community “are entitled, as
all other citizens, to the full range of constitutional rights including
the liberties protected by the Constitution” and are entitled to equal
citizenship and “equal protection of law”.
● the Supreme Court held in Shakti Vahini v. Union of India,
(2018) 7 SCC 192 held that the right to select a life partner
is a fundamental right. The court held that right to marry a
person of one’s choice is a fundamental right under Article
21, 19(1)(a) and 14 of the Constitution of India. Freedom of
speech and expression coupled with life and personal
liberty manifest the right to choose each other as life
partners. Once the fundamental right is inherent in a
person, then no one can scuttle such right by leaning on
any kind of philosophy, moral or social, or self-
proclaimed elevation.
● The choice of an individual is an inextricable part of dignity, for
dignity cannot be thought of where there is erosion of choice. True it
is, the same is bound by the principle of constitutional limitation but
in the absence of such limitation, none, we mean, no one shall be
permitted to interfere in the fructification of the said choice. If the
right to express one's own choice is obstructed, it would be extremely
difficult to think of dignity in its sanctified completeness. When two
adults marry out of their volition, they choose their path; they
consummate their relationship; they feel that it is their goal and they
have the right to do so. And it can unequivocally be stated that they
have the right and any infringement of the said right is a
constitutional violation
In the landmark verdicts of Shafin Jahan vs Asokan K.M.(2018) 16 SCC 368 and Shakti
Vahini v. Union of India, (2018) 7 SCC 192, the Hon’ble Supreme Court had held that, “the
right of an adult to choose one’s own partner is a crucial aspect of individual liberty and the
state is powerless to negotiate upon the said liberty.”
The Supreme Court had held, in Re: Indian Woman says gang-raped on orders of Village
Court published in Business & Financial News dated 23.01.2014 (2014)4 SCC 786, “that the
State is duty-bound to protect the fundamental rights of its citizens; and an inherent aspect of
Article 21 of the Constitution would be the freedom of choice in marriage.” Similarly, in
Asha Ranjan v. State of Bihar and others (2017) 4 SCC 397, it was held that,“choice of
woman in choosing her partner in life is a legitimate constitutional right. It is founded on
individual choice that is recognised in the Constitution under Article 19.” In Shakti Vahini
Supra, the Court went a step further and specifically ruled that the consent of the family or
the community or the clan is not necessary once the two adult individuals agree to enter into a
wedlock.
The law declared by the Apex Court in Shakti Vahini Supra is reproduced thus: “It has to be
sublimely borne in mind that when two adults consensually choose each other as life partners,
it is a manifestation of their choice which is recognized under Articles 19 and 21 of the
Constitution. Such a right has the sanction of the constitutional law and once that is
recognized, the said right needs to be protected and it cannot succumb to the conception of
class honour or group thinking which is conceived of on some notion that remotely does not
have any legitimacy.” Thus it can be safely concluded that the right to form a union of family
is one’s inalienable right and the society or mob has no legitimate interest to meddle in that
decision making. Thus the impugned provisions in so far as to portrays the societal or group
thinking that a marriage is only for a man and a woman is discriminatory and vitiates Articles
19 and 21 of the Constitution.
4. EXPRESSION OF CHOICE IS A FUNDAMENTAL RIGHT UNDER ARTICLE 19

AND 21 OF THE CONSTITUTION.
● The strength of the Constitution, therefore, lies in the guarantee
which it affords that each individual will have a protected entitlement

in determining a choice of partner to share intimacies within or
outside marriage.
●
MANU/SC/0340/2018
● It is obligatory to state here that expression of choice in accord with
law is acceptance of individual identity. Curtailment of that
expression and the ultimate action emanating therefrom on the
conceptual structuralism of obeisance to the societal will destroy the
individualistic entity of a person. The social values and morals have
their space but they are not above the constitutionally guaranteed
freedom. The said freedom is both a constitutional and a human
right. Deprivation of that freedom which is ingrained in choice on the
plea of faith is impermissible. Faith of a person is intrinsic to his/her
meaningful existence. To have the freedom of faith is essential to
his/her autonomy; and it strengthens the core norms of the
Constitution. Choosing a faith is the substratum of individuality and
sans it, the right of choice becomes a shadow. It has to be
remembered that the realization of a right is more important than the
conferment of the right. Such actualization indeed ostracises any
kind of societal notoriety and keeps at bay the patriarchal
supremacy. It is so because the individualistic faith and expression
of choice are fundamental for the fructification of the right. Thus, we
would like to call it indispensable preliminary condition.

MANU/SC/0340/2018
● It has to be sublimely borne in mind that when two adults
● 53. Non-acceptance of her choice would simply mean creating

authority of law.
It is so as the expression of choice is a fundamental right Under Articles 19 and 21 of the

Constitution, if the said choice does not transgress any valid legal framework. Once that
aspect is clear, the enquiry and determination have to come to an end.
Shafin Jahan vs. Asokan K.M. and Ors. (09.04.2018 - SC) : MANU/SC/0340/2018
● It is submitted that the right to sexual identity will be incomplete and non- workable
unless substantial rights are recognised as a consequence to identification.
Identification must be supplemented with dignity and dignity cannot be attributed
unless a person is given the right to choose his own way of life which includes
selection of a partner to live with.
● Justice Chandrachud, in his concurrent opinion in Navtej Supra, had opined that:
‘Section 377 criminalizes behaviour that does not conform to the heterosexual
expectations of society. In doing so it perpetuates a symbiotic relationship between
anti-homosexual legislation and traditional gender roles. The notion that the nature of
relationships is fixed and within the ‘order of nature’ is perpetuated by gender roles,
thus excludinghomosexuality from the narrative.’ The Hon’ble Court went on to hold
that laws that perpetuate stereotypes riddled with discrimination are unconstitutional.
● Equality would remain a distant dream for homosexuals if the law doesn’t allow all
the civil liberties enjoyed by heterosexuals for the homosexuals as well. Anything less
would be grossly discriminatory and violative of both Article 14 and 15(1) of the
Constitution of India right to equality and equal protection of law guaranteed to
members of LGBTIQ. The Hon’ble Court had held, in Navtej Supra, that: ‘Members
of the LGBT community are entitled, as all other citizens, to the full range of
constitutional rights including the liberties protected by the Constitution.’
● Denial of the institution of marriage to the Petitioners and the refusal of law to
recognize and accept homosexual marital unions is also a violation of their right to
freedom of expression guaranteed to them by the Constitution of India under Article
19(1)(a) and are thus illegal and constitutional. The petitioners’ right to expression of
love in the form that they aspire to conduct will be meaningless if their marital union
is not recognized by law. Expression of love, growth of one’s personality within a
relationship and development of an identity of union will be incomplete if the law
refuses to recognize same sex marriages and thereby it affects the Article 19(1) rights
of the petitioners guaranteed by Article 19(1)(a) of the Constitution of India.
● the aforesaid right to form a union extends to marital unions as well. ‘Union’ is more
than one person coming together and acting in consonance for a common purpose.
Like any other body corporate, marital union/ married couple also carries rights and
obligations of being a legal entity in itself. A married couple is a recognised legal
personality. Thus there exists no reason to not include married couples from the scope
of ‘union’ as it appears in Article 19(1)(c).
● In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, the
Hon’ble Supreme Court had held that the gender identity is intrinsic to one’s
personality and the denial of the said identity which one is entitled to self-determine is
a violation of his/her dignity.
● It is also worthy to point out that Justice Indu Malhotra had, in Navtej Supra, held
that: ‘A person’s sexual orientation is intrinsic to their being. It is connected with their
individuality, and identity. A classification which discriminates between persons
based on their innate nature, would be violative of their fundamental rights, and
cannot withstand the test of constitutional morality.’
● Petitioners, having the right of self determination of one’s own sexual identity, aspire
to live with the partner of their choice and for the law to recognise that choice. If the
law refuses to respect that choice of partner a homosexual would make, it amounts to
negation of the right to self determination of sexual identity of that person.
● The manifestation of the aforesaid ratio would be meaningless and incomplete unless
the sexual minorities are afforded equal access to the institution of marriage and by
enabling them to profess love in the way they deem fit.
● It is submitted that the right of an adult to choose one’s own partner is a recognized
fundamental right under Article 14 and 21 of the Constitution of India. In the
landmark verdicts of Shafin Jahan vs Asokan K.M.(2018) 16 SCC 368 and Shakti
Vahini v. Union of India, (2018) 7 SCC 192, the Hon’ble Supreme Court had held
that the right of an adult to choose one’s own partner is a crucial aspect of individual
liberty and the state is powerless to negotiate upon the said liberty.
● It is submitted that any restrictions or curbs or bans on same sex marriages would be
unreasonable and illegal per se. This is because notwithstanding the legal infirmity in
the unequal treatment meted out to sexual minorities in access to institution of
marriage, there also exists no credible basis or scientific evidence or expert opinion
which supports the exclusion of homosexuals from access to marriage.
● These provisions kill the idea of transformative constitutionalism which, as held by
the Hon’ble Supreme Court, in Navtej Singh Supra, ‘not only includes within its
wide periphery the recognition of the rights and dignity of individuals but also
propagates the fostering and development of an atmosphere wherein every individual
is bestowed with adequate opportunities to develop socially, economically and
politically. Discrimination of any kind strikes at the very core of any democratic
society.’
● The impugned provisions vitiate constitutional morality and try to fixate the
majoritarian morality on the LGBTQI persons who form a minority.
●
ABBE UNDER HEADINGS DAAL….PHLE DISCRIMINATORY DIKHAYENGE….FIR

USI ME ENTITLED TO ALL THE RIGHTS DIKHAYENGE PHIR pRIVACY AND
CHOOSING faith aur partner dikhayenge...
in Common Cause (A Regd. Society) v. Union of India2, held:
●
● Our autonomy as persons is founded on the ability to decide: on what
to wear and how to dress, on what to eat and on the food that we
share, on when to speak and what we speak, on the right to believe or
not to believe, on whom to love and whom to partner, and to freely
decide on innumerable matters of consequence and detail to our
daily lives.
●
● The strength of the Constitution, therefore, lies in the guarantee
which it affords that each individual will have a protected entitlement
in determining a choice of partner to share intimacies within or
outside marriage.
●
MANU/SC/0340/2018
● It is obligatory to state here that expression of choice in accord with
law is acceptance of individual identity. Curtailment of that
expression and the ultimate action emanating therefrom on the
conceptual structuralism of obeisance to the societal will destroy the
individualistic entity of a person. The social values and morals have
their space but they are not above the constitutionally guaranteed
freedom. The said freedom is both a constitutional and a human
right. Deprivation of that freedom which is ingrained in choice on the
plea of faith is impermissible. Faith of a person is intrinsic to his/her
meaningful existence. To have the freedom of faith is essential to
his/her autonomy; and it strengthens the core norms of the
Constitution. Choosing a faith is the substratum of individuality and
sans it, the right of choice becomes a shadow. It has to be
remembered that the realization of a right is more important than the
conferment of the right. Such actualization indeed ostracises any
kind of societal notoriety and keeps at bay the patriarchal
supremacy. It is so because the individualistic faith and expression
of choice are fundamental for the fructification of the right. Thus, we
would like to call it indispensable preliminary condition.
MANU/SC/0340/2018
● In their plea, they have argued that non-recognition of same-sex
marriage violates the principles of equality, individual dignity and
personal autonomy, which is enshrined under Part III of the
Constitution of India.
Social values and morals have their space but they are not above
constitutional rights. Freedom of faith is necessary as it strengthens the
core of the constitution.
● The Allahabad High Court canceled a case filed against a Muslim

man, Salamat Ansari, filed by the parents of his wife, Priyanka
Kharwar. Priyanka Kharwar had converted to Islam last year to
marry Salamat Ansari. The Allahabad High Court also said that it
does not see Priyanka and Salamat as Hindu-Muslim but rather as
two grown-up individuals.
● “The choice of a partner whether within or outside marriage lies within the
exclusive domain of each individual. Intimacies of marriage lie within a core
zone of privacy, which is inviolable. The absolute right of an individual to choose
a life partner is not in the least affected by matters of faith. The Constitution
guarantees to each individual the right freely to practise, profess and propagate
religion. Choices of faith and belief as indeed choices in matters of marriage lie
within an area where individual autonomy is supreme…Neither the state nor the
law can dictate a choice of partners or limit the free ability of every person to
decide on these matters. They form the essence of personal liberty under the
Constitution”, wrote Justice Chandrachud.
● “Deprivation of that freedom which is ingrained in choice on the plea of faith is
impermissible. Faith of a person is intrinsic to his/her meaningful existence. To
have the freedom of faith is essential to his/her autonomy; and it strengthens the
core norms of the Constitution. Choosing a faith is the substratum of
individuality and sans it, the right of choice becomes a shadow.”
● “The social values and morals have their space but they are not above the
constitutionally guaranteed freedom”, the two judges said.
● In the case of Lata Singh v. State of Uttar Pradesh, it was held that Right
to Marriage is an essential part of the right under Art.21 and that
people have the right to choose their partners without any compulsion.
In this case, the court came down heavily upon the acts of khap
panchayats and honour killings that are prevalent in India. It was
stated in this case, “This is a free and democratic country, and once a
person becomes a major he or she can marry whosoever he/she likes. If
the parents of the boy or girl do not approve of such inter-caste or
inter-religious marriage the maximum they can do is that they can cut
off social relations with the son or the daughter, but they cannot give
threats or commit or instigate acts of violence and cannot harass the
person who undergoes such inter-caste or inter- religious marriage.”
● The right to marry is intrinsic to the liberty which the Constitution

guarantees as a fundamental right, is the ability of each individual to
take decisions on matters central to the pursuit of happiness. Matters
of belief and faith, including whether to believe are at the core of
constitutional liberty.
● LGBTQ Community Entitled to all Constitutional Rights (Navjet Singh
Johar and others v. Union of India 2018):
● The SC held that members of the LGBTQ community “are entitled, as
all other citizens, to the full range of constitutional rights including
the liberties protected by the Constitution” and are entitled to equal
citizenship and “equal protection of law”.
● the Supreme Court held in Shakti Vahini v. Union of India,

(2018) 7 SCC 192 held that the right to select a life partner
is a fundamental right. The court held that right to marry a
person of one’s choice is a fundamental right under Article
21, 19(1)(a) and 14 of the Constitution of India. Freedom of
speech and expression coupled with life and personal
liberty manifest the right to choose each other as life
partners. Once the fundamental right is inherent in a
person, then no one can scuttle such right by leaning on
any kind of philosophy, moral or social, or self-
proclaimed elevation. Shakti Vahini vs. Union of India
(2018) 7 SCC 192
● Even now there are no anti-discrimination frameworks to protect LGBTQIA+
individuals from harassment and violence in the public and private spheres. It
has been criticised by marginalised groups within the community. To portray
marriage as the ‘priority of the queer struggle’ is to represent a minuscule
portion of cisgender upper caste and upper-class queer people
The petitioners say “the decisions of the apex court would be
“meaningless and incomplete unless the sexual minorities are
afforded equal access to the institution of marriage and by enabling
them to profess love in the way they deem fit”.
x“… right to sexual identity will be incomplete and non-workable
unless substantial rights are recognised as a consequence of the

identification. Identification must be supplemented with dignity and
dignity cannot be attributed unless a person is given the right to
choose his own way of life which includes a selection of a partner to
live with”,
law that fails in its duty to protect one’s self determination of sexual
identity and treat that identity with dignity disrespects individual choice
and thus is considered irrational and manifestly arbitrary, violating
Article 14 of the Constitution of India.
The Supreme Court had held, in Re: Indian Woman says gang-raped on
orders of Village Court published in Business & Financial News dated
23.01.2014 (2014)4 SCC 786, that the State is duty-bound to protect the
fundamental rights of its citizens; and an inherent aspect of Article 21 of
the Constitution would be the freedom of choice in marriage. Similarly,
in Asha Ranjan v. State of Bihar and others (2017) 4 SCC 397, it was
held that choice of woman in choosing her partner in life is a legitimate
constitutional right. It is founded on individual choice that is recognised
in the Constitution under Article 19.
In Shakti Vahini Supra, the Court went a step further and specifically
ruled that the consent of the family or the community or the clan is not
necessary once the two adult individuals agree to enter into a wedlock.
Thus it can be safely concluded that the right to form a union of family
is one’s inalienable right and the society or mob has no legitimate
interest to meddle in that decision making. Thus the impugned
provisions in so far as to portrays the societal or group thinking that a
marriage is only for a man and a woman is discriminatory and vitiates
Articles 19 and 21 of the Constitution.
Supreme Court in Shakti Vahini vs. Union of India and others
MANU/SC/0291/2018 : (2018) 7 SCC 192. The relevant paragraph
reads:
"44. The concept of liberty has to be weighed and tested on the
touchstone of constitutional sensitivity, protection and the values it
stands for. It is the obligation of the constitutional courts as the
sentinel on qui vive to zealously guard the right to liberty of an
individual as the dignified existence of an individual has an
inseparable association with liberty. Without sustenance of liberty,
subject to constitutionally valid provisions of law, the life of a person
is comparable to the living dead having to endure cruelty and torture
without protest and tolerate imposition of thoughts and ideas without
a voice to dissent or record a disagreement."
Safiya Sultana and Ors. vs. State of U.P. and Ors. (12.01.2021 -
Lata Singh Vs. State of U.P. and another MANU/SC/2960/2006 :
(2006) 5 SCC 475

This is a free and democratic country, and once a person becomes a
major he or she can marry whosoever he/she likes. If the parents of
the boy or girl do not approve of such inter-caste or inter-religious
marriage the maximum they can do is that they can cut off social
relations with the son or the daughter, but they cannot give threats or
commit or instigate acts of violence and cannot harass the person
who undergoes such inter-caste or inter-religious marriage.
It has to be sublimely borne in mind that when two adults
The choice of an individual is an inextricable part of dignity, for
dignity cannot be thought of where there is erosion of choice. True it
is, the same is bound by the principle of constitutional limitation but
in the absence of such limitation, none, we mean, no one shall be
permitted to interfere in the fructification of the said choice. If the
right to express one's own choice is obstructed, it would be extremely
difficult to think of dignity in its sanctified completeness. When two
adults marry out of their volition, they choose their path; they
consummate their relationship; they feel that it is their goal and they
have the right to do so. And it can unequivocally be stated that they
have the right and any infringement of the said right is a
constitutional violation
Shafin Jahan vs. Asokan K.M. and Others MANU/SC/0340/2018 :
(2018) 16 SCC 368
Intimacies of marriage lie within a core zone of privacy, which is inviolable.
The absolute right of an individual to choose a life partner is not in the least
affected by matters of faith. The Constitution guarantees to each individual
the right freely to practise, profess and propagate religion. Choices of faith
and belief as indeed choices in matters of marriage lie within an area where
individual autonomy is supreme. The law prescribes conditions for a valid
marriage. It provides remedies when relationships run aground. Neither the
state nor the law can dictate a choice of partners or limit the free ability of
every person to decide on these matters. They form the essence of
personal liberty under the Constitution.
It is obligatory to state here that expression of choice in accord with law is
acceptance of individual identity. Curtailment of that expression and the
ultimate action emanating there from on the conceptual structuralism of
obeisance to the societal will destroy the individualistic entity of a person.
The social values and morals have their space but they are not above the
constitutionally guaranteed freedom. The said freedom is both a
constitutional and a human right. Deprivation of that freedom which is
ingrained in choice on the plea of faith is impermissible. Faith of a person
is intrinsic to his/her meaningful existence. To have the freedom of faith is
essential to his/her autonomy; and it strengthens the core norms of the
Constitution. Choosing a faith is the substratum of individuality and sans it,
the right of choice becomes a shadow. It has to be remembered that the
realisation of a right is more important than the conferment of the right.
Such actualisation indeed ostracises any kind of societal notoriety and
keeps at bay the patriarchal supremacy. It is so because the individualistic

faith and expression of choice are fundamental for the fructification of the
right. Thus, we would like to call it indispensable preliminary condition.
53. Non-acceptance of her choice would simply mean creating
authority of law.

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Arguments- Petitioner

1 The Constitution of India, 1950.

[1.2] The impugned legislation is in violation of Article 25 of the Constitution.

7 The Constitution of India,1950.

“Deprivation of that freedom which is ingrained in choice on the plea of faith is

[1.2.1] Chilling effect on Fundamental Right of Conscience and propagation of Religion.

10 Shafin Jahan vs. Asokan K.M. and Ors. MANU/SC/0340/2018.

11 Shakti Vahini v Union of India (2018) 7 SCC 192.

[1.3] Ordinance is manifestly arbitrary and violative of Article 14.

It is pertinent to note that the impugned Ordinance is in violation of Right to Equality

13 Ajay Hasia v Khalid Mujib Seharavadi, (1981) 1 SCC 722.

[1.4]Ordinance violative of Article 15 of the Constitution.

It is pertinent to note that the impugned Ordinance is violative of Article 15 of the

[2] RIGHT TO LIFE INCLUDES THE RIGHT TO GET MARRIED TO ANY

[2.1] NON-RECOGNITION OF MARITAL RIGHTS OF SAME-SEX COUPLES IS

21 K S Puttaswamy V Union of India and Ors. (2017) 10 SCC 1.

Thus the non-recognition of homosexual marriage is violative of Article 14 as it is arbitrary

[2.2] RIGHT TO PRIVACY UNDER ARTICLE 21 AND FREEDOM OF

26 K.S.Puttaswamy vs. Union of India (2017) 10 SCC 1.

Non-recognition of the marriage of homosexuals is an attack on individuality and autonomy

[2.2.1] NON-RECOGNITION IS VIOLATIVE OF THE RIGHT TO FREEDOM OF

Expression of love, growth of one’s personality within a relationship and development of an

[2.3] THAT RIGHT TO LIFE INCLUDES RIGHT TO MARRY ANY PERSON

39 Shafin Jahan vs. Asokan K.M. and Ors. MANU/SC/0340/2018.

41 Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522.

[3.1] THAT THE COURT HAS THE JURISDICTION TO PASS RESTRAINING

43 Sahara India Real Estate Corpn, Ltd v SEBI (2012) 10 SCC.

[3.2] SUCH RESTRAINING ORDER ARE ONLY TO BALANCE CONFLICT

47 Sahara India Real Estate Corpn, Ltd v SEBI (2012) 10 SCC.

49 Sahara India Real Estate Corpn, Ltd v SEBI (2012) 10 SCC.

[3.3] RIGHT TO PRIVACY CANNOT BE TRAMPLED BY FREEDOM OF SPEECH

[4] WHETHER THERE IS ANY PROHIBITION IN ANY LAW FOR PEOPLE TO

60 Kanimozbi Karunanidhi v. Thini P.Varadarajan, Madras High Court.

63 Ratilal Panachand Gandhi v. State of Bombay,1954 SCR 1035.

66 Shafin Jahan v. Asokan P.M. and Ors., MANU/SC/0340/2018.

68 S.R. Bommai v. Union of India, 1994 AIR SC 1918.

71 Ahmedabad St. Xavier’s College v. State of Gujarat 1974 AIR 1389

affords that each individual will have a protected entitlement in determining

a choice of partner to share intimacies within or outside marriage.

Shafin Jahan vs. Asokan K.M. and Ors. (09.04.2018 - SC) :

It is obligatory to state here that expression of choice in accord with law is

acceptance of individual identity. Curtailment of that expression and the

ultimate action emanating therefrom on the conceptual structuralism of

obeisance to the societal will destroy the individualistic entity of a person.

constitutionally guaranteed freedom. The said freedom is both a

constitutional and a human right. Deprivation of that freedom which is

ingrained in choice on the plea of faith is impermissible. Faith of a person

is intrinsic to his/her meaningful existence. To have the freedom of faith is

essential to his/her autonomy; and it strengthens the core norms of the

Constitution. Choosing a faith is the substratum of individuality and sans it,

the right of choice becomes a shadow. It has to be remembered that the

realization of a right is more important than the conferment of the right.

Such actualization indeed ostracises any kind of societal notoriety and

keeps at bay the patriarchal supremacy. It is so because the individualistic

right. Thus, we would like to call it an indispensable preliminary condition.

consensually choose each other as life partners, it is a manifestation

of their choice which is recognized under Articles 19 and 21 of the

Constitution. Such a right has the sanction of the constitutional law

it cannot succumb to the conception of class honour or group

thinking which is conceived of on some notion that remotely does not

have any legitimacy.

● 53. Non-acceptance of her choice would simply mean creating

discomfort to the constitutional right by a constitutional court which