2ND DEO MANDAL MEMORIAL NATIONAL MOOT COURT COMPETITION-2023

TEAM CODE - NSL66

BEFORE THE HON’BLE SUPREME COURT OF ARYAVART

WRIT PETITION (PIL)UNDER ARTICLE 32

IN THE MATTER OF :-

MIRNAL & OTHERS ...................................... . ............. ........................... PETITIONER

GOVT. OF ARYAVART & OTHERS..............................................................RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUDGES OF THE HON’BLE SUPREME COURT OF ARYAVART

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

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S. No. Particulars Page No.

1. Index of Authorities 3

2. List of Abbreviation 4

3. Statement of Jurisdiction 5

4. Statement of Facts 6

5. Statement of Issues 7

6. Summary of Arguments 8

7. Arguments Advanced 10

8. Issue I 10

9. Issue II 15

10. Issue III 22

`11. Issue IV 27

12. Prayer 33

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 INDEX OF AUTHORITIES

1. DattarajNathujiThaware v. State of Maharashtra and Others

2. Rajiv Ranjan Singh 'Lalan' &Anr vs Union Of India &Ors
3. marriage has deep-rooted social and cultural connotations. In the case of SCHALK
AND KOPF v. AUSTRIA (2010) para 62
4. Para 63 and 64 of SCHALK AND KOPF v. AUSTRIA
5. OBERGEFELL v. HODGES
6. by NACI, NACP IV Working Group Hijras TG dated 5.5.2011
7. Richard John Baker v. Gerald R. Nelson
8. Ashwini Kumar Upadhyay Versus Union of India & Others
9. PARA 146. OF Shayara Bano V Union of India and others 2016
10. ( STATE OF BOMBAY V NARASU APPA MALI 1952 and Krishna Singh
11. Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496
12. Adithyan v. Travancore Devasom Board paragraph 16,
13. Commissioner, Hindu Religious Endowments, Madras V. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt 1954 SCR 1005 @ Para 17 (7 Judges)
14. Ratilal Panachand Gandhi v. State of Bombay & Ors. 1954 SCR 1055 @ Para 13
(CB)
15. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 @ Para
33
16. ,Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan AIR 1963 SC 1638 @
Paras 55-60 (CB), Bijoe Emanuel v. State of Kerala (1986) 3 SCC 615 @ Para 20
(DB) A.S. Narayana Deekshitulu v. State of A.P. & Ors. (1996) 9 SCC 548 @ Paras
90, 118 and 125 (DB)
17. -Jamshed ji v. Soonabai 33 Bom. 122 (1909) (Davar, J.) , Commissioner, Hindu
Religious Endowments, Madras V. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt 1954 SCR 1005 @ Para 17 (7 Judges) ,, Ratilal Panachand Gandhi v. State of
Bombay & Ors. 1954 SCR 1055 @Para 13 (approves Jamshed ji' judgment) (CB) ,
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 @ Para
33 (CB), Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan AIR 1963 SC
1638 @ Paras 55 - 60 (CB),
18. Krishna Singh v. Mathura Ahir of 1980
19. Pranati Aguan Vs. State of West Bengal and Ors. 2019)PARA 14
20. .( Narendra Kumar v. The Union of India, Das Gupta),
21. National Fertilizers Ltd. v. Somvir Singh (2006) 5 SCC 493. Hickinbottom J in JK
HIGCOURT OF JUSTICE LONDON
22. in YP v Russia (Application No: 8650/12)
23. Federal High Court of 6 September 2017 (XII ZB 660/14
24. in R (on the application of TT) v The Registrar General [2019] EWHC 2384 (Fam)

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 LIST OF ABBREVIATIONS

SC Supreme Court
AIR All India Reporter
Anr. Another
UK United Kingdom
UN Universal Declaration of Human Rights
SCC Supreme court cases
ECtHR European Court of Human Rights
Edn. Edition
STATUTES

a. THE CONSTIRUTION OF INDIA.

b. THETRANSGENDERPERSONS (PROTECTIONOFRIGHTS) ACT, 2019
c. THE REGISTRATION OF BIRTHS AND DEATHS ACT, 1969
d. ICCPR
e. The Cairo Declaration of the Organization of Islamic Cooperation on Human Rights
f. UDHR

BOOKS REFERRED

1. THE CONSTITUTION OF INDIA , MLS V.2,V3

2. THE CONSTITUTION OF INDIA , LM SINGHVI
3. THE CONSTITUTION OF INDIA.SAMRADITA PAL V.1
4. THE CONSTITUTION OF INDIA, DD BASU
5. THE HOLY GEETA
6. THE HOLY QURAN
7. THE HOLY BIBLE
8. THE INTERPRETATION OF STATUTE , THOMSON REUTORS
9. COMMENTARIES ON MOHOMMEDAN LAW J. SHA RAZA
10. UNDERSTANDINDG THE ISLAMIC LAW ,LEXIS NEXIS

ONLINE SOURCES-1. Lexisnexis2. Manupatra3. SCConline

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 STATEMENT OF JURISDICTION

THE PETITIONER HAS FILED THIS WRIT PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF ARYAVART FOR THE VIOLATION OF FUNDAMENTAL
RIGHTS
ENUMERATED IN PART III OF THE CONSTITUTION. THE RESPONDENT
MAINTAINS
THAT NO VIOLATION OF RIGHTS HAS TAKEN PLACE AND THE PARTY IS AN
INTERESTED PARTY FOR THIS PIL. THEREFORE, THIS HON’BLE
COURT NEED NOT ENTERTAIN ITS JURISDICTION IN THIS PETITION.

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 STATEMENT OF FACTS

1. Mrinal (Hindu trans-man) and Akram (Muslim trans-woman) are LGBTQIA+ Couple
and resident of Avanti state.
2. They both have been in a relationship since 2010 and disclosed their relationship in
public after homosexuality was decriminalized by the Hon’ble Supreme Court of
Aryavart in 2018.
3. They married under their respective Customs. Their wedding was attended by their
near and dear ones. Friends and family supported their marriage.
4. Mrinal gets pregnant and gave birth to a healthy baby boy.
5. Their application to get birth certificate issued for their son was rejected by the
authorities in the State of Avanti. They tried to register themselves transmen as father
and transwomen as mother which are their perceived identity and not biological
identity due to which birth certificate was rejected.
6. Further, they also tried to get their marriage registered, which was also rejected by the
authorities in the State of Avanti.
7. Due to rejection of both birth certificate and then, marriage registration they have
agenda to implement a Uniform Civil Code which recognizes both same sex marriage
and inter-religious marriage and grants equal rights to all irrespective of sex and
religion.
8. NGO - Samridhi working for the welfare of Muslim women, wants to implement
Uniform Civil Code throughout the Country of Aryavrat wherein women irrespective
of religion will have equal rights and has also filed PIL in this regard.
9. The All-Indus Muslim Personal Law Board has filed Impleading Petition in both the
Public Interest Litigations filed by the NGO and the Trans-couple. The All-Indus
Muslim Personal Law Board is opposing Implementation of Uniform Civil Code as
they claim that it infringes their personal right and the same is in violation of the
rights granted under the Constitution.
10. Although there was presence of UCC in election agenda, but the Government is
opposing a Uniform Code which recognizes LGBTQIA community and is opposing
the PIL filed by the Trans-couple.

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 STATEMENT OF ISSUES

1. Whether the PIL is maintainable in the Supreme court of Aryavrat or not and is
it feasible to implement Uniform Civil Code in a Country like Aryavrat?

2. Whether UCC is violative of one’s’ Fundamental rights and other personal

rights guaranteed under the Constitution of Aryavart and is it the States’s
interference in the realm of the personal laws of the subjects?

3. Whether the non-issuance of the Birth Certificate for the child born from a
LGBTQIA couple is violation of the Child’s right by the state?

4. Whether the Constitutional power of Court to frame laws has led to the scenario
where Legislature have become the Executive wing of the Judiciary?

NOTE: The Laws of Aryavart in pari materia with the Law of Republic of India

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 SUMMARY OF ARGUMENTS

I. . That the PIL is not maintainablein the Supreme court of Aryavratbecause this PIL is clear
violation of PIL guidelines of the court. There is Presence of Interested Party in PIL
Parliament is the correct forum. UCC is a policy issue. Alternate remedy has not been
exhausted by the petitioners before filling of this PIL. With respect to Election promises, they
were made by a political party and not by the Government and such election promises are not
fact of the case.

That UCC is not feasible because it is Threat to Minority Rights. There is need of extensive
legal reforms necessary to harmonize personal laws into a single code which would demand
significant time and effort. During this transitional period, the legal system may experience
an increased burden due to the emergence of new cases challenging the constitutionality of
the UCC.Law Commission of India has already stated that UCC is neither necessary nor
desirable at this stage, as it would be counter-productive for the harmony of the nation. It also
suggested that reforms in personal laws should be done by amendments and not by
replacement. A just code is far more important than a uniform code.

II. THAT the UCC is indeed a violation of fundamental rights & even the Personal laws- like
succession , maintenaince, and other civil matters which are essential and integral part and
not secular part of some religion and cultural practices which are protectedunder Article
25,29,14 ,371 ,6th schedule and any intereference by state is unwarranted, neither necessary
nor desierable and if done then it will cause damage to integrity and national security of
nation.The same is supported by catena of judgements , judgements of any other courts,
religious texts- The GEETA ,The QURAN,, The BIBLE, reports(law commission,pew
research Nagaland resoulution ), survey of national and international significance

III. THAT the non-issuance of the Birth Certificate for the child born from a LGBTQIA
couple is NOTviolation of the Child’s right by the state WHEN the procedure established by
the law is not followed AS procedure tries to give the child right his beneficial interest
protected when the biological father and mother is reflected in the birth certificate.THE
jurisprudence of the present case is similar to that of UK. RUSSIA, GERMANY and thus the
state act of non issuance is a balancing act between individual and societal interest..

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IV. . That the Constitutional power of Court to frame laws has led to the scenario where
Legislature have become the Executive wing of the Judiciary.Judicial restraint helps
in preserving a balance among the three branches of government, judiciary, executive, and
legislative. The court should not interfere with policy matter to mark a respect for the
democratic form of government by leaving the policy on policymakers.Judicial Overreach
can lead to an expression of disregard by the judiciary in the elective representation. This can
decrease the faith of the public in the institution of democracy.The Judiciary should be
cautious of stepping into spheres of activity that does not belong to it. The Court must
recognize the limits on itself and respect the choices made by the Aryavrat’s people

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 ARGUMENTS ADVANCED

1. Whether the PIL is maintainable in the Supreme court of Aryavrat or not and is
it feasible to implement Uniform Civil Code in a Country like Aryavrat?

2. That the two principal questions that needs to be answered before going for merit of
the case are as follows: -
3. Whether the PIL is maintainable in the Supreme court or not?
4. Is it feasible to implement Uniform Civil Code?
5. That the PIL is not maintainable and Uniform Civil Code is not feasible.
6. That there is an individual personal interest and is in gross violation of PIL guidelines.
As per full Court decision dated 1.12.1988 and subsequent modifications, no petition
involving individual/ personal matter shall be entertained as a PIL matter in the
Hon’ble Supreme Court of India.
7. The LGBTQIA+ couple is interested party. The said PIL guidelines are the pillars of
PIL that must be respected. The development of PIL has also uncovered its pitfalls
and drawbacks. As a result, the Hon’ble Supreme court of India itself has been
compelled to lay down certain guidelines to govern the management and disposal of
PILs. And the abuse of PIL is also increasing along with its extended and multifaceted
use. Just as a weapon meant for defence can be used equally effectively for offence,
the lowering of the locus standi requirement has permitted privately motivated
interests to pose as public interests. (ANNEXURE-1)
8. The abuse of PIL has become more rampant than its use and genuine causes either
receded to the background or began to be viewed with the suspicion generated by
spurious causes mooted by privately motivated interests in the disguise of the so-
called public interests. With the view to regulate the abuse of PIL the apex court itself
has framed certain guidelines (to govern the management and disposal of PILs.) The
court must be careful to see that the petitioner who approaches it is acting bona fide
and not for personal gain, private profit or political or other oblique considerations.
The court should not allow its process to be abused to delay legitimate administrative

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 action or to gain political objectives. Political pressure groups who could not achieve
their aims through the administrative process or political process may try to use the
courts (through the means of PILs) to further their closely vested aims and interests.
9. That the judgment of DattarajNathujiThaware v. State of Maharashtra and Others
is duly relied upon by the Hon’ble Supreme Court of India Rajiv Ranjan Singh
'Lalan' &Anr vs Union Of India &Ors. The said important part of judgment is
reproduced here:"4. When there is material to show that a petition styled as a public
interest litigation is nothing but a camouflage to foster personal disputes, the said
petition is to be thrown out. Before we grapple with the issue involved in the present
case, we feel it necessary to consider the issue regarding public interest aspect. Public
Interest Litigation which has now come to occupy an important field in the
administration of law should not be "publicity interest litigation" or ''private interest
litigation" or "politics interest litigation'' or the latest trend ''paise income litigation".
10. That marriage and UCC are policy issues and courts are not the right forum. It is a
matter of fact that marriage has deep-rooted social and cultural connotations. In the
case of SCHALK AND KOPF v. AUSTRIA (2010) para 62 echoes the same thought
which is: “In that connection, the Court observes that marriage has deep-rooted social
and cultural connotations which may differ largely from one society to another. The
Court reiterates that it must not rush to substitute its own judgment in place of that of
the national authorities, who are best placed to assess and respond to the needs of
society.” Article 12 of the Convention provides “Men and women of marriageable age
have the right to marry and to found a family, according to the national laws
governing the exercise of this right.”

11. In this respect Para 63 and 64 of SCHALK AND KOPF v. AUSTRIA (2010) is
important with respect to marriage right of same-sex couple.
12. Para 63 states: “In conclusion, the Court finds that Article 12 of the Convention does
not impose an obligation on the respondent Government to grant a same-sex couple
such as the applicant’s access to marriage.”
13. That in the case of OBERGEFELL v. HODGES, C.J. Roberts while dissenting
clearly observed the following: But this Court is not a legislature. Whether same-sex
marriage is a good idea should be of no concern to us. Under the Constitution, judges
have power to say what the law is, not what it should be. The people who ratified the
Constitution authorized courts to exercise “neither force nor will but merely
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 judgment.” He went ahead and expressed the following in his judgment: Although
the policy arguments for extending marriage to same-sex couples may be compelling,
the legal arguments for requiring such an extension are not. The fundamental right to
marry does not include a right to make a State change its definition of marriage. And
a state’s decision to maintain the meaning of marriage that has persisted in every
culture throughout human history can hardly be called irrational..(ANNEXURE-2)

14. That C.J. Roberts in OBERGEFELL v. HODGES also expressed that the mandate of
the people must be respected and such complex decisions having large implications
must be left with the legislature to make law and not the courts. According to him: It
is not about whether, in my judgment, the institution of marriage should be changed to
include same-sex couples. It is instead about whether, in our democratic republic, that
decision should rest with the people acting through their elected representatives, or
with five lawyers who happen to hold commissions authorizing them to resolve legal
disputes according to law.

15. That LGBTQIA+ community is not coherent and Marriage is not a fundamental right.
Richard John Baker v. Gerald R. Nelson, was a case in which the Minnesota
Supreme Court decided that construing a marriage statute to restrict marriage licenses
to persons of the opposite sex "does not offend" the U.S.
Constitution. (ANNEXURE-3)
16. That marriage and the matters related to Uniform Civil Code are a part of entry 5 of
List 3 of the constitution of India( ANNEXURE- 5)
17. The expanded version stands as: 5. Marriage and divorce; infants and minors;
adoption; wills, intestacy and succession; joint family and partition; all matters in
respect of which parties in judicial proceedings were immediately before the
commencement of this Constitution subject to their personal law. Hence, only
legislature should see this and not the court as it will exceed the jurisdiction of the
Supreme Court of India and will result in miscarriage of justice. Moreover, it is
necessary that all state governments are made party as it is a matter of concurrent list.
18. That the Hon’ble Supreme Court of India has held that Parliament is the appropriate
forum for Uniform Civil Code. The same is expressed in the order of the Hon’ble

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 Supreme Court of India in the case of Ashwini Kumar Upadhyay Versus Union of
India &Others. (ANNEXURE-4)
19. Para 5 of the same is reproduced for reference as: On a considered view of the
pleadings and the submissions, we are not inclined to entertain the petitions under
Article 32 of the Constitution. The grant of relief in these proceedings would
necessitate a direction for the enactment of law, a gender neutral and religion neutral
legislation, as the petitioner has described it. Enactment of legislation lies exclusively
within the domain of the legislature. It is a well settled position that a mandamus
cannot be issued to the legislature to enact law.
20. Para 6 of the same order is as follows: As regards the prayer for a direction to the Law
Commission to prepare a report, we see no reason to entertain the request since
ultimately it is in aid of the enactment of legislation which falls in the legislative
domain.
21. That the Election promises, if any, for implementation of Uniform Civil Code are not
the matter of fact of this case. Election promises were made by a political party and
not by the Government. Moreover, in the case of Khurshidurehman S. Rehman v
State of U P And Another, the court has held that they cannot direct the government
to fulfil Election promise. (ANNEXURE-22)

22. Para 21 of the said Judgment is reproduced for kind reference: It is, thus, clear that
the election manifesto promulgated by any political party is a statement of their
policy, view, promises and vow during the election, which is not the binding force
and the same cannot be implemented through the courts of law. Even there is no penal
provision under any statute to bring the political parties within the clutches of
enforcement authorities, in case, they fail to fulfil their promises as made in the
election manifesto.

23. That there are the Arguments in Against of UCC: -

24. Threat to Minority Rights: Aryavrat's strength lies in its diverse society, and personal
laws have been developed to accommodate these diversities.

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25. Critics argue that imposing a single code might undermine the cultural and religious
autonomy of minority communities, leading to feelings of alienation and
marginalisation.
26. Judicial Backlog: Implementing a UCC could exacerbate the situation of backlog of
cases.
27. The extensive legal reforms necessary to harmonize personal laws into a single code
would demand significant time and effort.
28. Consequently, during this transitional period, the legal system may experience an
increased burden due to the emergence of new cases challenging the constitutionality
of the UCC.
29. Complexities within UCC in Goa of India having similarity with Kankan, the only
state which is so-called celebrated for UCC in Aryavrat : Goa's implementation of a
UCC has been praised by the Supreme Court in 2019. However, the ground reality
reveals complexities and legal pluralities within the state's UCC.
30. The UCC in Goa permits a specific form of polygamy for Hindus and does not extend
the Shariat Act to Muslims (they are governed by Portuguese and Hindu laws).
31. Additionally, Catholics enjoy certain privileges, such as exemption from marriage
registration and the ability of Catholic priests to dissolve marriages.
32. This highlights the complexity of personal laws in India, even within a state known
for implementing a UCC.

33. That the Stance of Law Commission must be seen and acknowledged which is anti-
thesis to the theory of feasibility of UCC.
34. Law Commission of India (2018): It stated that UCC is neither necessary nor
desirable at this stage, as it would be counter-productive for the harmony of the
nation. It also suggested that reforms in personal laws should be done by amendments
and not by replacement. A just code is far more important than a uniform code..
( ANNEXURE-6)

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II Whether UCC is violative of one’s’ Fundamental rights and other personal rights
guaranteed under the Constitution of Aryavart and is it the States’s interference in the
realm of the personal laws of the subjects

 NEITHER NECESSARY NOR DESIRABLE (LAW COMMISSION)

 ORDER REJECTING ASHWINI KUMAR PETITION.
(ANNEXURE -7)

That the UCC is indeed a violation of fundamental rights especially Article 25,29,14 and
even the Personal laws of many religions . The arguments substantiating the same are as
follows:-

1.WITH RESPECT OF ARTICLE 25 AND PERSONAL LAWS.

 Hon'ble Justices J.S. Kehar and S. Abdul Naseer upheld the judgments
rendered in Narasu Appa and Krishna Singhthe Hon'ble Justices went
one step further to hold that Personal Law is constitutionally protected
under Article 25.
PARA 146. OF Shayara Bano V Union of India and others 2016
‘Personal law’ has a constitutional protection. This protection is
extended to ‘personal law’ through Article 25 of the Constitution

a) It is submitted that the issue of Muslim Personal Law is a cultural issue which is
inextricably interwoven with religion of Islam. Matters like succession ,
maintenaince, divorce, and other civil matters are essential and integral part of the
religion and religious practices followed by the different School of thought in Islam.(
( ANNEXURE-8-QURAN.) ( ANNEXURE-9-SHARIA)

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Thus, it is the issue of freedom of conscience and free profession, practice and
propagation of religion guaranteed under Article 25 and 26 read with Article 29 of the
Constitution of India.

b) The protection of Article 25 and 26 is not limited to matters of doctrine or belief, but
it extends to the acts done in pursuance of religion.

It is submitted that this Hon‟ble court in Syedna Taher Saifuddin Saheb v. State
of Bombay, 1962 Supp (2) SCR 496

had held that the protection of Articles 25 and 26 was not limited to matters of
doctrine or belief but they extended also to acts done in pursuance of religion and
therefore contained a guarantee for rituals and observances, ceremonies and modes
of worship which are integral parts of religion. It was also held that what
constituted an essential part of religion or a religious practice had to be decided by
the Courts with reference to the doctrine of a particular religion and included
practices which are regarded by the community as a part of its religion.

Adithyan v. Travancore Devasom Board paragraph 16,

The legal position that the protection under Articles 25 and 26 extends a
guarantee for rituals and observances, ceremonies and modes of worship which
are integral parts of religion and as to what really constitutes an essential part of
religion or religious practice has to be decided by the courts with reference to the
doctrine of a particular religion or practices regarded as parts of religion, came to
be equally firmly laid down.”

c) It is submitted that the principles of marriage and divorce differ in each religion. Each
religion views these principles in a different context and therefore the principles in
each religion are unique and peculiar to that particular religion only. In such
circumstances, one cannot look at the validity of the principles of one religion or
judge them as being unequal with the rights in another religion because the principles
in each religion are peculiar to only that religion and these principles have been

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 cloaked with the protection under Article 25, 26 and 29 so as to preserve the
uniqueness of each religion. And UCC PURPORTS TO DO THE OPPOSITE

d) Once a practice is shown to be part of, integral to and a tenet of a religion and it is
considered an essential part of that religion, it is entitled to protection under
Articles 25, 26 and 29 of the Indian Constitution.

See:Commissioner, Hindu Religious Endowments, Madras V. Sri Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt 1954 SCR 1005 @ Para 17 (7 Judges)

Para 17....A religion undoubtedly has its basis in a system of beliefs or doctrines
which are regarded by those who profess that religion as conducive to their spiritual
well being, but it would not be correct to say that religion is nothing else but a
doctrine or belief..

Para 18. The guarantee under our Constitution not only protects the freedom of
religious opinion but it protects also acts done in pursuance of a religion and this is
made clear by the use of the expression "practice of religion" in Article 25..."

and that all secular activities associated with religion do not constitute an essential
part of a religion (noted in para 19) was rejected as overbroad. The Court noted:

Ratilal Panachand Gandhi v. State of Bombay & Ors. 1954 SCR 1055 @ Para 13 (CB)

Para 13 applies the essentiality test to rights and ceremonies, even though they
may seem to be secular activities

it cannot be said that these are secular activities partaking of commercial or

economic character simply because they involve expenditure of money or
employment of priests or the use of marketable commodities. No outside
authority has any right to say that these are not essential parts of religion and it
is not open to the secular authority of the State to restrict or prohibit them in
any manner they like under the guise of administering the trust estate..."

see

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 Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 @
Para 33 (CB),Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan AIR
1963 SC 1638 @ Paras 55-60 (CB), Bijoe Emanuel v. State of Kerala (1986) 3
SCC 615 @ Para 20 (DB) A.S. Narayana Deekshitulu v. State of A.P. & Ors.
(1996) 9 SCC 548 @ Paras 90, 118 and 125 (DB)

e) What is an essential and integral part of the religion is not to be decided by

objective tests or on the basis of the beliefs of those in the society who are not part
of the religion. It must be decided on the basis of the understanding and beliefs in
that religion "as regarded as such by the community" practicing that religion : Hence,
both Judges and the rest of society must accept what the community of a religion
regards as an essential part of that religion, even though the society at large may not
do so

SEE-Jamshed ji v. Soonabai 33 Bom. 122 (1909) (Davar, J.) , Commissioner, Hindu

Religious Endowments, Madras V. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt 1954 SCR 1005 @ Para 17 (7 Judges) ,, Ratilal Panachand Gandhi v. State of
Bombay & Ors. 1954 SCR 1055 @Para 13 (approves Jamshed ji' judgment) (CB) ,
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 @ Para
33 (CB), Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan AIR 1963 SC
1638 @ Paras 55 - 60 (CB), 118 an…in the Dai as the head of the community is part
of the creed of Dawoodi Bohra". (See Sardar Syedna' @ Para 37). (iv) Every
Dawoodi Bohra "...at the time of the initiation takes an oath of unquestioned faith in
and loyalty to the Dai." (See Sardar Syedna' @ Para 38)

Krishna Singh v. Mathura Ahir of 1980 (5)where the apex court held that “personal
laws could not be challenged for being in contravention of the provisions of
Fundamental Rights enshrined under the Indian Constitution

It was thus held that the judges could not introduce their own “modern understanding”
of the law and consequently apply Part III of the Constitution on the Personal laws.

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SO THE ABOVE PRINCIPLES FOR PERSONAL LAWS AS GUARANTEED
UNDER ARICLE 25 WILL BE VIOLATED IF UCC IS ENACTED AS UCC WILL
SUPERIMPOSE A PARTICULAR GUIDING PRINCIPLES WHICH MAY BE
CLOSELY RELATED TO MAJORITY RELIGION AND WILL ULTIMATELY GO
AGAINST OTHER RELIGIOUS LAWS. ( ANNEXTURE BJP MANIFESTO-----
SHOWING ONE RELIGION AS UCC IN DIFFERENT PART OF THE WORLD +
LAWS CLOSENESS WITH HINDU LAWS )

2) UCC also violates the cultural practices of tribals also which is guaranteed
underARTICLE 29(1): Any section of the citizens residing in the territory of India or
any part thereof having a distinct language, script or culture of its own shall have the right to
conserve the same.

The article is backed by following provisions--

The sixth schedule of the constitution of India provides certain protections to a

number of states. While some tribal laws in fact protect matriarchal systems of
family organisations some of these also preserve provisions which are not in the
interest of women. There are further provisions that allow for complete autonomy
on matter of family law which can also be adjudicated by the local panchayats
which once again, follow their own procedures.

Article 371A was inserted by Constitution (13th Amendment) Act, 1962, which
provides that, no Act of Parliament in respect of: (i) religious or social practices of
the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and
criminal justice involving decisions according to Naga customary law, and (iv)
ownership and transfer of land and its resources, shall apply to the State of
Nagaland unless the Legislative Assembly of Nagaland, by a resolution so
decides.

Thus, Article 371A contemplates a different treatment to the part of Nagaland in view
of the difference between the needs of the social conditions in Nagaland and the
various stages of development of different parts of the country. Articles 371 B- 371 I
offer similar exemptions to other states in the North East.

Thus, while framing law it has to be borne in mind and cultural diversity cannot be
compromised to the extent that our urge for uniformity itself becomes a reason for

19
 threat to the territorial integrity of the nation (PAGE 8 OF LAW COMMISSION
REPORT 2018)

(ANNEXURE-11 LAW COMMISSION REPORT

. ( ANNEXURE12-NAGALAND RESOLUTION ON UCC AND

4 PARA 5,6,7 )

THE UCC WILL DESTROY THE BASIC DIVERSITY OF NATION

( ANNEXURE -13 OF LETTER ISSUED BY

PARLIAMENTRY STANDING COMMITTEE ON
PUBLIC GRIEVANCES WHICH UNDER LINES THE
JUDGEMENT OF TMA CASE..)

3) FURTHER UCC ALSO VIOLATES THE ARTICLE 14 ALSO because due to

the diverse nature of various religions and cultural practices they are totally different
and stands in an unequal footings with each others and any attempt by the state (UCC)
will be an act to subsume it in an so called equal and uniform laws will be a violation
of principle of Equal protection of law guaranteed by article 14 which says –
UNEQUALS CANNOT BE TREATED AS EQUALS.

Pranati Aguan Vs. State of West Bengal and Ors. 2019)PARA 14. The safeguard
in Article 14 of the Constitution is to prevent discriminatory treatment of persons
who claim to be equals; the right does not mean giving equal treatment or equal
protection of the law to persons who are unequals and would hence require
differential treatment for preserving their unique and individual characteristics

4) The fundamental rights enshrined in Articles 14, 15 and 21 are as against State actions. A
challenge under these provisions (Articles 14, 15 and 21) can be invoked only against the
State. AND NOT AGAINST PERSONAL LAWS therefore personal law are inviolable.

SHAYARA BANO V Union of India and others PARA 165 PAGE 225

The fundamental rights enshrined in Articles 14, 15 and 21 are as against State actions. A
challenge under these provisions (Articles 14, 15 and 21) can be invoked only against the
State. It is essential to keep in mind, that Article 14 forbids the State from acting arbitrarily.

20
---We have already rejected the contention advanced on behalf of the petitioners, that the
provisions of the Muslim Personal Law (Shariat) Application Act, 1937, did not alter the
‘personal law’ 226 status of ‘Shariat’. We have not accepted, that after the enactment of the
Shariat Act, the questions/subjects covered by the said legislation ceased to be ‘personal law’,
and got transformed into ‘statutory law’. Since we have held that Muslim ‘personal law’ –
‘Shariat’ is not based on any State Legislative action, we have therefore held, that
Muslim ‘personal law’ – ‘Shariat’, cannot be tested on the touchstone of being a State
action.

ALSO PERSONAL LAW DO NOT COME UNDER LAW IN FORCE OF ARTICLE

13(1) therefore cannot be challenged for violation of part III ( STATE OF BOMBAY V
NARASU APPA MALI 1952 ALSO REITERATED IN SHARABANO JUDGEMENT
IN PAGE 214)

5) WITH RESPECT OF STATE INTERFERENCE , YES , INDEED UCC IS

REGARDED AS SATE INTERFERENCE IN PERSONAL LAWS AND the
interference should be avoided due national security and integrity issuesAs underlined by
law commission, assembly resolution , PEW RESEARCH REPORTS

ANNEXURE-14 (A Closer Look at How Religious Restrictions Have Risen Around the
World

21
III. Whether the non-issuance of the Birth Certificate for the child born from a
LGBTQIA couple is violation of the Child’s right by the state?

NO! the non-issuance of the Birth Certificate for the child born from a LGBTQIA couple is
NOTviolation of the Child’s right by the state WHEN the procedure established by the law is
not followed?

TO substantiate the same we need to consider the following arguments-

1.) That in the present case the MRINAL (transman)who gave birth to a baby boy and his
partner AKRAM (transwoman) wanted to have birth certificate of their child AND
to have register themselves as father and mother respectively in it (which is their
gender identity and not the biological identities) was duly rejected by the
authorities in the State of Avanti should be considered as Violation of child right not
by the state but by the LGBTQIA family itself AS they committed illegal act and
act which is not prescribed by law for filling the birth certificate form
( ANNEXURE – 23 BIRTH CERTIFICATE FORM )

2.) THAT The correct approach to the question is, first to ascertain what is the
fundamental right of the petitioners; then to see, whether the law infringes that right.
If the law ex facie infringes that right, the State can support that law only by
establishing that the law imposes reasonable restrictions on the petitioner's
fundamental right in the interests of the general public.( Narendra Kumar v. The
Union of India, Das Gupta), AND IN OUR case the child fundamental right of
the child with respect to birth certificate comes to existence ony after filling the
form in prescribed format.

3.) An illegality cannot be a basis of a legal right. The ground of discrimination can be
raised for the purpose of availing the legitimate benefits legally permissible and it
cannot be raised for tainting to perpetual illegalities.( National Fertilizers Ltd. v.
Somvir Singh (2006) 5 SCC 493. See also Neerad Acharya v. State of Himachal

22
Pradesh, AIR 2001 HP 7; Om Prakash v. Administrator Jammu Municipality, AIR
2001 J&K 77)
Thus in our case Akram and Mrinal have commited illegality by not fulfilling the
prescribed criteria as per birth and death registration ACT.(which is filling the name
of AKARAM instead of biological mother of the child I.E., MRINAL).

( ANNEXURE –23 DIFFERENT FORMS OF BIRTH CERTIFICATE)

DEFINING MOTHER for the purpose of birth certificate of the child

 THE SURROGACY (REGULATION) ACT, 2021

SECTION 2(zg) “surrogate mother” means a woman who agrees to bear a

child (who is genetically related to the intending couple or intending woman)
through surrogacy from the implantation of embryo in her womb and fulfils the
conditions as provided in sub-clause (b) of clause (iii) of section 4;

 As per WHO -Maternal death is the death of a woman while pregnant or

within 42 days of termination of pregnancy, irrespective of the duration and
site of the pregnancy, from any cause related to or aggravated by the
pregnancy or its management but not from accidental or incidental cause
 THUS for the purpose of birth certificate of the child the mother must be the
biological women who have undervent the gestation period AND who is
carrying or has carried a child as a result of the placing in her of an embryo or
of sperm and eggs, and no other woman, is to be treated as the mother of the
child(ALSO section 33 of HFEA 2008,UK ) and not the perceived gender
even when the identity of which have given by NALSA v UOI OR
TRANSGENDER PROTECTION ACT 2109 ETC. The fact that a person’s
gender has become the acquired gender under this Act does not affect the
status of the person as the father or mother of a child.
 Interest in having coherent administrative systems was an important
consideration. Sexual identity and the choice of gender represented important
elements of an individual’s identity. However, parentage was also a vital
element in identity. The statutory registration scheme pursued the legitimate
23
aim of respecting the right of the child to know, and have properly
recognised, the identity of his or her biological father AND MOTHER

A REFERENCE OF UK CIURT JUDGEMENT MAY BE CITED HERE-

Hickinbottom J in JK HIGH COURT OF JUSTICE LONDON

A birth certificate should reflect the parent’s gender at the time of the
child’s birth regardless of whether this is the gender assigned at birth or
the acquired gender. Regarding the first part of this proposition, there is
support from two passages in the judgment of Hickinbottom J in JK to the
effect that a birth certificate must record the situation as at the time of birth:
“[88] Furthermore, as I have indicated, so far as the children are concerned,
the Art 8 arguments do not all tend in the same direction: whilst I accept that
disclosure that a parent is transsexual may interfere with a child’s Art 8 right
of privacy, the failure to reflect on a birth certificate the true position at birth
with regard to parentage also may interfere with that child’s right.”

Therefore THE BEST INTEREST OF CHILD(Article 3 is that state parties

must consider what is in the best interests of the child when regulating birth
registration and birth certificates, including when determining whom to record
as the parents of a childbe served only when birth certificate represent
biological parent which is duly required for procedure prescribed.

Foreign judgements
RUSSIA
in YP v Russia (Application No: 8650/12). YP, who was born female, gave
birth to a son and was registered as the child’s mother on the birth certificate.
The boy’s father was registered as ‘father’. Subsequently YP went through
medical and legal gender transition. He was issued with a birth certificate and
passport in his new male name and showing his gender as ‘male’. YP lodged
an action requesting the Russian courts to recognise him as his child’s father
with consequent corrections to official records and the child’s birth certificate.
The Russian courts refused YP’s application

24
 GERMANY
In the decision of the Federal High Court of 6 September 2017 (XII ZB
660/14) the facts were broadly similar to those of the present case: a female-
to-male trans person obtained a decision effecting a change of gender prior to
giving birth to a child via sperm donation. The trans man was registered
both in the birth register and for the purposes of the child’s birth
certificate as “mother”. 75. The Court interpreted the effect of the domestic
scheme (§ 1591 BGB and § 11 TSG) as requiring the trans man’s registration
as “mother”. It held that the fact that the trans man was recognised as
belonging to the male gender at the time of the child’s birth did not affect the
assignment of “status” as mother. §11 TSG was properly considered an
exception to §10 TSG; recognition in the “new” gender with all its antecedent
“gender-dependent” rights and duties, was subject to the express exception for
parent-child relationships. The Court laid emphasis on the right of a child of a
trans person to know its origins (Abstammungsrecht (GERMAN COURT
JUDGEMENT )
WHICH WAS EVEN UPHELD BY EUROPEAN COURT OF HUMAN
RIGHT( ANNEXURE -15)

UK

President of the Family Division, Sir Andrew McFarlane of the England and Wales
High Court, in R (on the application of TT) v The Registrar General [2019]
EWHC 2384 (Fam) denied Freddy McConnell the right to be recognised as his
baby’s father. The operative part of the judgement is as follows:
The principal conclusion at the centre of this extensive judgment can be shortly
stated. It is that there is a material difference between a person’s gender and their
status as a parent. Being a ‘mother’, whilst hitherto always associated with being
female, is the status afforded to a person who undergoes the physical and biological
process of carrying a pregnancy and giving birth. It is now medically and legally
possible for an individual, whose gender is recognised in law as male, to become
pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their
parental status, which derives from their biological role in giving birth, is that of
‘mother’.

25
UPHELD BY E COURT OF APPEAL (CIVIL DIVISION) ANNEXURE-
16AND ( ANNEXURE-17
ECHR ANNEXURE-18 )

THAT THUS it is evident that the child right is best protected when the
biological father and mother is reflected in the birth certificate as the birth
certificate reflects the relation of child with the biological parents and not
perceived identity of parents.
Hence non issuance of certificate for not following the rules is not violation of
child right as well as right of LGBTQ as birth certificate has nothing to do with
their perceived identity.

26
IV.Whether the Constitutional power of Court to frame laws has led to the scenario
where Legislature have become the Executive wing of the Judiciary?

That Judicial Overreach has painfully made Legislature as the executive wing of judiciary.

That When Judicial Activism goes overboard, and becomes Judicial Adventurism, it is
referred to as Judicial Overreach. In simpler terms, it is when the judiciary starts
interfering with the proper functioning of the legislative or executive organs of the
government. Judicial Overreach is undesirable in a democracy as it breaches the principle of
separation of powers.

That Judicial Activism has led to a controversy in regard to the supremacy between
Parliament and Supreme Courts. It can disturb the delicate principle of separation of powers
and checks and balances.

That Judicial Restraint is the antithesis of Judicial Activism. Judicial Restraint is a theory of
judicial interpretation that encourages judges to limit the exercise of their own power. In
short, the courts should interpret the law and not intervene in policy-making. Judges should
always try to decide cases on the basis of:

The original intent of those who wrote the constitution.

Precedent – past decisions in earlier cases.

Also, the court should leave policy making to others.

Here, courts “restrain” themselves from setting new policies with their decisions.

Judicial restraint helps in preserving a balance among the three branches of

government, judiciary, executive, and legislative.

To uphold the law established by the government in the legislature.

To show solemn respect for the separation of governmental problems.

27
To allow the legislature and the executive to follow their duties by not reaching in their arena
of work.

To mark a respect for the democratic form of government by leaving the policy on
policymakers.

Trends in Judicial Restraint:

S.R. Bommai v Union of India (1994) is a famous example often stated to show restraint
practiced by Judiciary. The judgement stated that in certain cases the judicial review is not
possible as the matter is political. According to the court, the power of article 356 was a
political question, thus refusing judicial review. The court stated that if norms of judiciary are
applied on matters of politics, then it would be entering the political domain and the court
shall avoid it.

Similarly, in Almitra H. Patel Vs. Union of India (1998) the Supreme court refused to direct
the Municipal Corporation on the issue of assigning responsibility for cleanliness of Delhi
and stated that it can only assign authorities to carry out duty that is assigned as per law.

That the clear impacts from such an Overreach of Judiciary are as follows:

There is a threat to the doctrine of separation of powers which undermines the spirit of the
constitution. There is a lack of harmony between legislature and judiciary and an impression
on the public of inaction by the legislature.

In certain scenarios like that of environmental, ethical, political, expert knowledge is required
which the judiciary might not possess. If it renders judgement while having no experience in
these domains, then it not only undermines expert knowledge but also can prove harmful to
the country.

Judicial Overreach can lead to an expression of disregard by the judiciary in the elective
representation. This can decrease the faith of the public in the institution of democracy.

Hence, it is an obligation on the part of courts to remain under their jurisdiction and uphold
the principle of separation of powers. The Supreme court has itself reminded other courts, in

28
2007, to practise Judicial restraint. It stated "Judges must know their limits and must try not
to run the government. They must have modesty and humility, and not behave like
emperors." Further, it said, "In the name of judicial activism, judges cannot cross their limits
and try to take over states which belong to another organ of the state".

That Examples of Judicial Overreach are as follows: -

A famous case of Judicial Overreach is censorship of the Film Jolly LLB II. The case was
filed as a writ petition, and alleged that the film portrayed the legal profession as a joke,
making it an act of contempt and provocation. The Bombay High Court appointed a three-
person committee to watch the movie and report on it. This was viewed as unnecessary, as
the Board Of Film Certification already exists and is vested with the power to censor. On the
basis of the report of the committee, four scenes were removed by the directors. It was seen
as violative of Article 19(2), as it imposed restriction on freedom of speech and expression.

On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at retail shops,
restaurants, bars within 500m of any national or state highway. There was no evidence
presented before the court that demonstrated a relation of ban on liquor on highways with the
number of deaths. This judgement also caused loss of revenue to state governments and loss
of employment. The case was seen as an Overreach because the matter was administrative,
requiring executive knowledge.

That the second example explained above is also tested for its implementation and
thought process in the VOLUME I ISSUE I of INDIAN JOURNAL OF
CONSTITUTIONAL & ADMINISTRATIVE LAW by Swati Sharma, Rahul Rishi &
M. S. Ananth in a report titled JUDICIAL ACTIVISM IN INDIA: WHETHER
MORE POPULIST OR LESS LEGAL? ( ANNEXURE-19)
Page 18 of the said report states: The NCRB data further states that only 3.3% of the total
accidents and/or fatalities were reported to be arising out of drunken driving.25 By co-
relating the per capital consumption data of a given state with the number of road accidents or
fatalities reported, there seems to be no direct link between states with maximum per capital
liquor consumption and states which witnessed the highest number of road
accidents/fatalities. In fact, in the year 2015, the states of UP, Maharashtra and Tamil Nadu
were not reported to have the highest per capital consumption of liquor despite a larger
proportion of fatalities in road accidents. There is clearly a glaring gap in drunken driving

29
statistics and the reasoning provided by the court in concluding that sale of liquor on state and
national highways within a distance of 500m must be banned. While the Court contended that
prescription of distance did not amount to judicial policy-making or legislative function, it
did not provide any rationale or evidentiary basis for computing 500 meters as a reasonable
distance that retail outlets should maintain from state or national highways.

Page 18 of the said report also states: Without prescribing any scientific or statistical
explanation for introducing the „500m‟ rule, the Court introduced an element of uncertainty
in the way judicial scrutiny of legislative or executive functions would be carried out. The
above judicial prescription, which is infringing upon the exclusive powers of the State under
List II of Schedule VII of the Indian Constitution, also runs the risk of being counter-
productive and may certainly lead to a substantial loss in state’s exchequer. The Court failed
to take into account that road traffic accidents have no single cause and that there is a myriad
of contributing factors that lead to such high fatalities. Structural faults in road design, poor
quality of road maintenance, inadequate global safety features in motor vehicles, non-
disciplined driving behaviour due to decades of poor enforcement by traffic police, absence
of pedestrian and manual lanes adjacent to state and national highways are a few major
reasons for road fatalities.

That the ill thought decisions of the Supreme Court may result into incitement of
violence when interfering with the policy issues that are best to be touched upon by
the legislature. Former Chief Justice of India KG Balakrishnan has stated that the
controversial SC/ST verdict of the Supreme Court was “basically wrong”, as the
decision will enable perpetrators to get away from the clutches of law. “This is
probably the first time a decision of the Supreme Court has incited violence among
the people. Usually, when violence is there, the Supreme Court intervenes. The people
used to accept the verdict. Now people are not in a position to accept the verdict of the
highest court of the land. It is something which is strange. This we should understand.
The Supreme Court should produce decisions which are acceptable to greater number
of people. It should not create violence among the society,” he said while delivering
the presidential address at a seminar on “Supreme Court Judgement on SC/ST Causes,
Effects and Solution” organised by South Asian Minorities Lawyers’ Association and
Ambedkar Educational Cultural Society. The apex court had diluted stringent
provisions of the SC/ST Act mandating immediate arrest under the law in a bid to
protect honest public servants discharging bona fide duties from being blackmailed
30
 with false cases. The said matter has been reported in a prominent website of The
Hindu.
( ANNEXURE-20)
That we also like to place reliance on the Synthesis Report on Economic Impact of
Select Decisions of the Supreme Court and National Green Tribunal of India. The
study was carried out with the financial support of NITI Aayog, Government of India,
and conducted by Consumer Unity & Trust Society, Jaipur. The Goa Foundation vs.
M/s Sesa Sterlite Ltd. &Ors. (Goa Mining Case), Hanuman Laxman Aroskar vs.
Union of India (Mopa Airport Case), The Tamil Nadu Pollution Control Board vs.
Sterlite Industries (I) Ltd (Sterlite Copper Plant Case), National Green Tribunal Bar
Association vs. Ministry of Environment & Forests and Ors. (Sand Mining Case)
and Vardhman Kaushik vs. Union of India &Ors. (NCR Construction Ban Case)
have been taken as examples in the where the Judiciary gave decisions that were not
properly thought multi-dimensionally. By going through the report, one can clearly
state that: Where multiple stakeholders are involved, the Courts should not indulge
into law making. While dealing with the Consolidated findings of the case, Page 31 of
the report speaks the Economic impact of the Court’s decisions which is reproduced
here for ready reference: It has been estimated that during the aforementioned period
of approximately three years from mid-2018 to mid-2021, at least about 75,000
persons were adversely impacted, and around 16,000 workers lost their jobs. The
government did not receive revenues of around Rs. 8,000 crores, which, if were
received and invested as capital expenditure, could have resulted in economic impact
of more than Rs. 20,000 crores. The industry lost close to Rs. 15,000 crores in
revenues, and workers lost around Rs. 500 crores of income, during the
aforementioned period. Thus, it can be deduced that when both these orders were in
force, the economic impact owing to inability of relevant governments to make capital
expenditure is estimated to be around Rs. 18 crores per day. During this period, the
impact on industry is estimated to be around Rs. 13 crores per day. Around 75,000
persons were adversely impacted during this period.( ANNEXURE-21)
That in a democracy, it is important to maintain the principle of separation of powers and
uphold the legitimacy of the three organs of government. It can be possible only when the
executive and legislature are attentive and functional. At the same time, the Judiciary should
be cautious of stepping into spheres of activity that does not belong to it.The Supreme Court,
of course, has the responsibility of ensuring that our government never oversteps its proper
31
bounds or violates the rights of individuals. But the Court must also recognize the limits on
itself and respect the choices made by the Aryavrat’s people.

32
 PRAYER

Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities
cited, this Hon’ble Court may be pleased to:

Find that:

1. It is humbly been prayed that the court is NOT the right and
appropriate forum for this PIL and parliament is the right forum
in this matter.
2. That the UCC must not be implemented in Aryavart as it is will
hamper the fundamental , cultural rights and personal laws as
gyaranteed under article 25,29 etc
3. That the birth certificate must not be issued to the child for
violation of procedure established by law.
4. That the demant of rights of LGBTQIA AND other similar
situated must be rejected in the light of state security and social
interest and administrative efficiency.
5. That the court must follow judicial restraint and not overreach
its authority as it may result into miscarriage of justice.
6. That cost must be imposed on the petitioner for filing frivolous
petition and wasting the valuable time and energy of the court.

And it is prayed that the Writ of petitioner may kindly be rejected, as per aforesaid
ground may be granted and order must be paseed as deemed fit and proper in the eyes
law.

Place: S/d_________________

Date: (Counsel on behalf of the RESPONDENT)

33