Roll No.

: 15007

BEFORE THE HONOURABLE SUPREME COURT OF

INDIA
Writ Petition(Civil)No. 2019

(Filed under Art.32 of the Constitution of India)

In the matter of:

Writ Petition No. 2019

Mr. A & Mr. B

v.

Govt. of National Capital Territory (N.C.T) of Delhi

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

COUNSEL FOR RESPONDENT

 --9TH SEMESTER MOOT, RGNUL, 2019--

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................... 3

TABLE OF AUTHORITIES ..................................................................................................... 6

STATEMENT OF FACTS ........................................................................................................ 7

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

ISSUES RAISED ....................................................................................................................... 9

SUMMARY OF ARGUMENTS ............................................................................................. 10

ARGUMENTS ADVANCED ................................................................................................. 12

1. THAT THE NON-RECOGNITION OF MARRIAGE DOES NOT AMOUNTS TO

VIOLATION OF FUNDAMENTAL RIGHTS OF THE PETITIONER............................ 12

2. THAT THE ACTS OF MEDIA DOES NOT AMOUNT TO VIOLATION OF

FUNDAMENTAL RIGHTS OF THE PETITIONER......................................................... 17

3. THAT THE PETITIONER SHOULD NOT BE AWARDED COMPENSATION BY

THE GOVERNMENT. ........................................................................................................ 19

PRAYER .................................................................................................................................. 22

2|Page
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

Sec. Section

¶ Paragraph

A.I.R. All India Reporter

All Allahabad

All ER All England Reporter

Anr. Another

Art. Article

Bom. Bombay

Cal. Calcutta

Jt. Joint

Ed. Edition

EHRR European Human Rights Reports

Govt. Government

3|Page
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

H.C. High Court

Hon’ble Honourable

Id. Idem

Kar. Karnataka

Dec. December

Mad. Madras

Ors. Others

p Page

U.O.I Union of India

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Reporter

Sec. Section

Supp. Supplementary

T.N. Tamil Nadu

4|Page
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

U.P. Uttar Pradesh

v. Versus

5|Page
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

TABLE OF AUTHORITIES

Cases
Asstt. Collector of Central Excise v. Jainson Hosiery, AIR 1979 SC 1889 ............................ 18
Express Newspapers v. Union of India, AIR 1958 SC 578 ..................................................... 16
Gas & Dubois v. France, [2014] 59 EHRR 22 ........................................................................ 13
In Re: Vijay Kumar AIR 1997 SC 73 ...................................................................................... 16
Life Insurance Corporation of India v. Prof. Manubhai D. Shah, AIR 1993 SC 171.............. 16
M.C. Mehta v. Union of India , (1986) 2 SCC 176 ................................................................. 19
National Legal Services Authority v. Union of India, (2014) 5 SCC 438 ............................... 12
R. Rajagopal and Ors. v. State of Tamil Nadu & others., (1994) 6 SCC 632 ......................... 15
Ramakrishna Dalmia v. Justice S R Tendulkar and Ors, AIR 1958 SC 538 ........................... 12
Romesh Thapar v. Union of India, AIR 1950 SC 124 ............................................................. 18
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305 .................................................... 17
Samarias Trading Co. Pvt. Ltd. v. S. Samuel and Ors., AIR 1985 SC 61 ............................... 17
Supreme Court Women Lawyers Assn. (SCWLA) v. Union of India, (2016) 3 SCC 680 ..... 13
Tata Press v. Mahanagar Telephone Nigam Ltd and Ors., AIR 1995 SC 2438 ...................... 17
Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323..................................... 13

Books
Author Book Name

M.P. Jain Indian Constitutional Law

Durga Das Basu Administrative Law

6|Page
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

STATEMENT OF FACTS

1. A same sex couple got married but their marriage was rejected by the state.
2. The couple were beaten by an extremist group in the public, their personal lives were
broadcasted and humiliated on social sites.
3. Feeling humiliated they approached the Supreme Court under original jurisdiction for
enforcing their fundamental right to marriage.
4. They seek injunction against the media from broadcasting their personal lives thereby
violating their right to privacy.
5. They requested the court to regulate hate crimes on social media under Art. 142.
6. They also prayed for recognition of their marriage and compensation from
government for being unable to protect their Fundamental Rights from extremist
groups and media.

7|Page
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

STATEMENT OF JURISDICTION

The Defendant humbly submits this memorandum in response to the petition filed before
this Honourable Court. The Defendant submits to the jurisdiction invoked by the
Petitioner and also reserves the right to challenge the same. It sets forth the facts and the
laws on which the claims are based.

8|Page
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

ISSUES RAISED

I.

WHETHER THE NON-RECOGNITION OF MARRIAGE AMOUNTS TO

VIOLATION OF FUNDAMENTAL RIGHT OR NOT?

II.

WHETHER ACTS OF MEDIA AMOUNT TO VIOLATION OF FUNDAMENTAL

RIGHTS?

III.

WHETHER THE PETITIONER SHOULD BE AWARDED COMPENSATION BY

THE GOVERNMENTOR NOT?

9|Page
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

SUMMARY OF ARGUMENTS

ARGUMENT I

THAT THE NON-RECOGNITION OF MARRIAGE DOES NOT AMOUNT TO

VIOLATION OF FUNDAMENTAL RIGHTS OF THE PETITIONER.

Firstly, the said marriage does not find recognition under the existing legal framework.

Secondly, non-recognition of the same sex marriage does not violate Article 15 because it
prevents discrimination on the basis of sex and not sexual orientation which is a fluid
concept.

ARGUMENT II

THAT THE ACTS OF MEDIA DOES NOT AMOUNT TO VIOLATION OF

FUNDAMENTAL RIGHTS OF THE PETITIONER.

Firstly, the information related to the couple was in public domain as they filed an
application for marriage which requires them to give their personal details & once a matter
comes into public domain or public record then the right to privacy does not apply.

Secondly, the media also have a fundamental right of press which is guaranteed by the
Indian constitution.

ARGUMENT III

THAT THE PETITIONER SHOULD NOT BE AWARDED COMPENSATION BY

THE GOVERNMENT.

Firstly, the acts of the media does not amount to violation of the fundamental rights of the
couple as it was within their fundamental right of press to show the matter of public
importance on their channel.

10 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

Secondly, the government is not liable for the payment of any compensation if any, as there is
no mention in the facts of the government being violating the fundamental rights of the
couple.

11 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

ARGUMENTS ADVANCED

1. THAT THE NON-RECOGNITION OF MARRIAGE DOES NOT AMOUNTS

TO VIOLATION OF FUNDAMENTAL RIGHTS OF THE PETITIONER.

1. It is humbly prayed before the court to declare the said union as an invalid marriage
under the given laws. Firstly, the said marriage does not find recognition under the
existing legal framework. Secondly, non-recognition of the same sex marriage does
not violate Article 15 because it prevents discrimination on the basis of sex and not
sexual orientation which is a fluid concept.
2. Thirdly, Marriages in India are regulated largely by the personal laws of the
communities and Special Marriage Act in the country. It is humbly submitted before
the court that none of the laws regulating institution of marriage conceive the concept
of same sex marriage or give recognition to it. Though the laws do not expressly
prohibit the same sex marriage but the framework of all the laws if centered round a
man and woman relationship and not conceive the idea of a marriage between the
same sex people.
3. A marriage in the Hindu law is solemnized after the fulfilling the ceremony of
saptpadi1 which clearly mentions the existence of a bridegroom and a bride to
complete the marriage.
4. Further, the tenets of the Holy Bible which teaches them to love homosexuals as a
people but condemn homosexuality as a lifestyle. The Book of Genesis Chapters 18
and 19 describe an event regarding God pouring His judgement on Sodom and
Gomorrah. In Leviticus Chapter 18.v. 22 it is said– “Do not lie with a man as one lies
with a woman”.
5. In Muslim marriage, the basic ceremony consist of the officiant (any Muslim Male)
asking the bride and groom if they consent to the marriage; when they say so, the
marriage becomes valid. Here too, there is no concept of marriage that is conceived
for the same sex couples.
6. The Special Marriage Act, 1954 do not explicitly prohibit same sex marriage but it
does not even conceive the idea of same sex marriage. It only recognizes the idea of

1
S. 7 Hindu Marriage Act, 1955
12 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

an opposite sex marriage. The marriage is solemnized after giving the notice in the
form specified in the schedule which clearly provides for a requirement of a male and
a female.2
7. It is humbly submitted that the non-recognition of same sex marriage is not violative
of Article 15 of the Constitution since it provides protection against the discrimination
on the basis of sex and not sexual orientation which is a fluid concept.
8. Article 15 of the Constitution reads as:
(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them
a) Article 15 talks of religion, race, caste, sex or place of birth or any of them,
not sexual orientation. There is no religious orientation, race orientation or
caste orientation, domicile orientation. Sexual orientation is a word that is
alien to the Constitution of India and cannot be imported in the context of
testing a constitutionality of a legislation.
b) If sex has to be replaced with sexual orientation it would require a
constitutional amendment. Section 43 starts with the expression ‘Any two
persons’ which means a man or a woman and there is no discrimination as
provided for under Article 15 on the grounds of sex. Article 15 postulates that
there shall not be a gender discrimination on the basis of sex. Thus Art.15 is
not violated in Sec 4 of Special Marriage Act, 1954.
c) Confusion between Sex and Sexual Orientation:
There is no Definiteness or Definition for Sexual Orientation. The word ‘sex
orientation’ finds no mention in the constitution or even dictionary till date.
This is not a new phenomenon but has been in existence for many centuries
according to the petitioners. The framers of our Constitution however, never
thought it appropriate to incorporate sex and sexual orientation
interchangeably in the Constitution. The concept of sexual orientation as
explained by the petitioners is in a state of mind without any definiteness. Sex
and gender are an attribute of the body with certainty. Sexual Orientation is an

2
S. 5 Special Marriage Act, 1954s
3
Special Marriage Act, 1954

13 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

attribute of the mind with no certainty. There are 30 different sexual

orientations stated by psychologists across the world.
d) Sexual Orientation cannot be treated as a person’s identity:
The Constitution (Article.15) recognises only binary sexual existence of a
citizen. Because if sexual orientation is a part of one’s identity, criminalizing
an act of a person without the consent of the other person is actually
criminalizing his identity. It is a matter of choice as it is agreed upon by
medical research that it arises and manifest in early childhood. It is a morally
relative belief system with no absolutes. In human beings, bodies are designed
for reproduction.

9. This Hon’ble court has further held that in order to translate the aforesaid rights of
TGs into reality, it becomes imperative to first assign them their proper “sex”.4
Therefore, if the homosexuals do not wish to be treated as a differently, then they
have to be recognized as a separate gender. Here in this petition the petitioner is not
seeking declaration of a gender, but a declaration of a very fluid concept of sexual
orientation.
10. Declaring the law unconstitutional is one of the last resorts taken by the courts. The
courts would preferably put into service the principle of reading down or reading into
the provisions to make it effective, workable and ensure the attainment of the object
of the Act. But while reading down the Court cannot change the essence of law and
create a new law which in its opinion is more desirable.5
11. The court cannot rewrite, recast or reframe the legislation for the very good reason
that it has no power to legislate. The power to legislate has not been conferred on the
courts. The court cannot add words to a statute or read words into it which are not
there. Assuming there is a defect or an omission in the words used by the legislature
the court could not go to its aid to correct or make up the deficiency. Courts shall
decide what the law is and not what it should be. The court of course adopts a
construction which will carry out the obvious intention of the legislature but could not

4
National Legal Services Authority v. Union of India, (2014) 5 SCC 438
5
Ramakrishna Dalmia v. Justice S R Tendulkar and Ors, AIR 1958 SC 538
14 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

legislate itself.6 At the very outset, we must make it clear that the courts neither create
offences nor do they introduce or legislate punishments. It is the duty of the
legislature. The Courts may not venture to interpret new meanings for statutes which
are not provided for by the Legislature.7
12. In the light of the said decision, we part with the suggestion with the fond hope that
Parliament would respond to the agony of the collective, for it really deserves
consideration. We say no more on this score.
13. Homosexual Marriages as a consequence of a decriminalisation is not approved by
European Court of Human Rights. The Court held that the applicants were not in a
legal situation comparable to that of a married couple and therefore there was no
discrimination under Article 14. Regarding the issue of legalizing the same sex
’marriage’ in the religious premises, the right to freedom of religion must also be
taken up against the competing right of right to non-discrimination. If the same sex
marriages are made legalized then it will be difficult for the state then to prevent such
marriages being taking place in the religious premises. It becomes the duty of the
court then to strike a fair balance between the two competing rights.8 While the
introduction of same-sex marriage will undoubtedly have consequences for religious
freedom, as a direct result of this particular decision, “Churches will be forced to
conduct same-sex marriages” in Member States that have adopted same-sex
marriage.
14. It is also the case of the applicant that the recognition of same sex marriage will open
a floodgate of social issues which the legislative domain is not capable of
accommodating as same sex marriages would become social experiments with
unpredictable outcome.
15. Further, it is the contention of the applicant that recognition of same sex marriage will
have cascading effect on existing laws such as Section 32(d) of the Parsi Marriage
and Divorce Act, 1936; Section 27(7)(1A) A of the Special Marriage Act, 1954
which permits a wife to present a petition for divorce to the district court on the

6
Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323
7
Supreme Court Women Lawyers Assn. (SCWLA) v. Union of India, (2016) 3 SCC 680: (Just. Deepak Mishra)
Para 5
8
Gas & Dubois v. France, [2014] 59 EHRR 22
15 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

ground,—(i) that her husband has, since the solemnization of the marriage, been
guilty of rape, sodomy or bestiality; Section 10(2) of the Indian Divorce Act, 1869
and Section 13(2) of the Hindu Marriage Act, 1955.
16. It is also the case of the intervenor that if recognition of same sex marriage, then the
family system which is the bulwark of social culture will be in shambles, the
institution of marriage will be detrimentally affected and rampant homosexual
activities for money would tempt and corrupt young Indians into this trade.
17. Legally, every young person has right to marry and to enter into a marriage contract.
But unlike any commercial contract, responsibilities of the contract of marriage are
not limited only within the contractual parties. Marriage is the foundation of a family
as well as social relations. A couple owes a great responsibility to the family and
society. In other words, right to marry is not an absolute one; it has to correspond to
some other duties. For example, among the various objectives of a marriage, two
prime objectives are to legalize the sexual intercourse between two persons of
opposite sexes, and to procreate children. But through marriage, law does not only
give right to two adult persons to satisfy their biological needs and to give birth to
legitimate children, but also does impose a duty not to harm their life partner and
children in any way. If a person is not able to perform this duty, he/she cannot
exercise his/her right to marry.
18. The right to marry is subject to national laws regulating marriage; including laws that
prohibit marriage between certain types of people (for example close relatives).
Although the government is able to restrict the right to marry, it must not impose
limitations which impair the very essence of the right.
19. Right to marriage is provided under human right charter that to under the heading of”
Right to have family”. In Indian Constitution this right not expressly mention .But it
is interpreted under Art 21. Right to marry is universal right. It is available to all
persons but whether it includes same sex marriage. Marriage right is recognized at
international level but in India there is no special law for marriage right marriage right
is mentioned under various covenant but it does not include person of same sex
marriage. Indian constitution provides for right to marry but it is not fundamental
right.

16 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

2. THAT THE ACTS OF MEDIA DOES NOT AMOUNT TO VIOLATION OF

FUNDAMENTAL RIGHTS OF THE PETITIONER.

2.1 THAT THE INFORMATION RELATED TO THE COUPLE WAS IN PUBLIC

DOMAIN

20. It is submitted that the right to privacy is implicit in the right to life and liberty
guaranteed to the citizens of this country by Article 21. It is a "right to be let alone".
A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education among other matters.9
21. But there is an exception to the fundamental right of privacy any publication
concerning the aforesaid aspects becomes unobjectionable if such publication is based
upon public records including court records. This is for the reason that once a matter
becomes a matter of public record, the right to privacy no longer subsists and it
becomes a legitimate subject for comment by press and media among others.
22. In the present case the couple do have the right to privacy as their fundamental right
but as soon as they gave an application of marriage to the government of National
Capital Territory of Delhi their personal details came into public record or public
domain also in facts it is given that the couple was persecuted & beaten up by some
extremist group in front of general public & police personal so the matter was in the
public domain.
23. Filing of application for marriage includes publication of the details of the couple for
any objections which serves the information into public domain. They were beaten up
in the public by the extremist group which & the media broadcasting the issue on the
channel will not amount to the violation of fundamental right of privacy.

9
R. Rajagopal and Ors. v. State of Tamil Nadu & others., (1994) 6 SCC 632.

17 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

2.2 THAT THE MEDIA HAS A FUNDAMENTAL RIGHT OF EXPRESSION &A

RIGHT TO EXERCISE THE SAME

24. For the democratic functioning of a society, freedom of expression has always been
emphasized as an essential and fundamental base of the society. Freedom of speech
and expression which includes the freedom of press is considered as the backbone of
the democratic society. The extent of the freedom press enjoyed by the press is
regarded as the parameter or credentials of democracy of a state. The Press plays an
important role because it provides all comprehensive and objective information of all
aspects of the country’s Economic, Political, Social, and Cultural aspects.
25. In India the right of freedom of speech and expression is incorporated in 19(1)(a) of
the Indian Constitution. This right of freedom of speech and expression is a
fundamental right in the Indian legal system. The right to free press does not exist
independently and is incorporated in the right of freedom of speech and expression;
and hence the right to free press is regarded as a fundamental right.
26. The press not only brings to the notice of the society, the crimes, which otherwise
would have gone unnoticed; but also plays a crucial role in initiating legal
proceedings in such crimes, thereby ensuring justice.
27. Freedom of the press has been called the “mother of all other liberties” by the
Supreme Court.10 It was held in Life Insurance Corporation of India v Prof.
Manubhai D. Shah11 that the right to free speech includes the freedom of ideas as well
as their publication and circulation. In Express Newspapers v Union of India12, the
Supreme Court held that the “freedom of the press rests on the assumption that the
widest possible dissemination of information from diverse and antagonistic sources is
essential to the welfare of the public.” Publicity has been recognized as the ‘very soul
of justice’.13 In light of these judgments, it is submitted that our judiciary has adopted
a strong position in favour of freedom of the press and has constantly sanctioned
against unreasonable restrictions.

10
In Re: Vijay Kumar AIR 1997 SC 73,
11
Life Insurance Corporation of India v. Prof. Manubhai D. Shah, AIR 1993 SC 171
12
Express Newspapers v. Union of India, AIR 1958 SC 578
13
Samarias Trading Co. Pvt. Ltd. v. S. Samuel and Ors., AIR 1985 SC 61
18 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

28. In Sakal Papers (P) Ltd. v Union of India14 the Supreme Court resoundingly held that
even if there are different aspects to running a media organization, including those
that do not directly concern dissemination of news and information, any interference
with the right to free speech can only be permitted by the restrictions provided under
Article 19 (2).15
29. However, there is nothing in clause (2) of Article 19 which permits the State to
abridge this right on the ground of conferring benefits upon the public in general or
upon a section of the public. It is not open to the State to curtail or infringe the
freedom of speech of one for promoting the general welfare of a section or a group of
people unless its action could be justified under a law competent under clause (2) of
Article 19.16 This view was reiterated in Tata Press v Mahanagar Telephone Nigam
Ltd and Ors17.where a three judge bench of the Supreme Court emphasized that the
only permissible restrictions on free speech could be those envisaged in Article 19 (2)
and that a provision intended to curtail any other fundamental right would be struck
down if it directly impacts the right under 19 (1) (a).

3. THAT THE PETITIONER SHOULD NOT BE AWARDED COMPENSATION BY

THE GOVERNMENT.

3.1 THERE IS NO VIOLATION OF FUNDAMENTAL RIGHT OF PETITIONER

BY THE MEDIA & EXTREMISTS GROUP

30. It is submitted to the court that for a remedy under Article 32 there has to be a
violation of fundamental rights provided under chapter III of the constitution. It is

14
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305.
15
Article 19(2) of Constitution of India: “Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence”
16
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
17
Tata Press v. Mahanagar Telephone Nigam Ltd and Ors., AIR 1995 SC 2438
19 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

also stated by the Court has held that only if there is a violation of Fundamental
Rights can it step in under the Jurisdiction of Article 32.18
31. But in the instant case there was no violation of any fundamental right of the
petitioner as the information was in the public domain & they were also beaten in
front of public so it was within their fundamental right of press to cover the incident
& broadcast the same.
32. It is submitted that the couple was beaten up by the extremist group which is an
offence under Indian Penal Code under various sections hence there is an alternate
remedy & it was held this Hon’ble apex court in Asstt. Collector of Central Excise v.
Jainson Hosiery19 where there is alternative statutory remedy court should not
interfere unless the alternative remedy is too dilatory or cannot grant quick relief.

3.2 GOVERNMENT CANNOT BE MADE LIABLE FOR ANY VIOLATION BY

THE MEDIA & EXTREMISTS GROUP IF ANY

33. It is primary responsibility of a State, which is committed to the welfare of its

citizens, to maintain law and order and also to ensure the safety and security of its
members. For any injury whether physical or otherwise, caused to a citizen, due to the
action or inaction on the part of the State, the State is answerable for the same. This is
particularly the case with the Fundamental Rights, which are guaranteed under Part III
of the Constitution.
34. Declaration of fundamental rights is meaningless unless there is effective machinery
for the enforcement of the rights. It is the remedy, which makes the right real. It was,
therefore, in the fitness of the things that our Constitution makers, having
incorporated a long list of fundamental rights, have also provided for an effective
remedy for the enforcement of these rights under Article 32 of the Constitution.
35. In M.C. Mehta v. Union of India20 , the Court clarified that the compensation would
be given only in “appropriate cases” and not in every case. The “appropriate cases”
are those cases where “the infringement of fundamental right is gross and patent” that

18
Romesh Thapar v. Union of India, AIR 1950 SC 124
19
Asstt. Collector of Central Excise v. Jainson Hosiery, AIR 1979 SC 1889
20
M.C. Mehta v. Union of India , (1986) 2 SCC 176.
20 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

is incontrovertible and ex facie glaring and either such infringement should be on a

large scale affecting the fundamental right of a large number of persons or it should
appear unjust or unduly harsh or oppressive on account of their poverty or disability
or socially or economically disadvantaged position to require the person affected by
such infringement to initiate and pursue action in civil courts. In the said case the
Supreme Court directed the management of the Company to deposit a sum of Rs. 20
lacks by way of security for payment of compensation claims of the victims of Oleum
gas leak with the Registrar of the Court.
36. It is submitted that it was not the government paying for the violation done by a
company but the management of the company itself. Government can be made liable
for the violations as a state under Article 13 but any violations of non-state actors
can’t bind state to pay compensation for its cause. In the facts of the prop it is not
stated that there is a failure of any state machinery to protect the fundamental rights of
the couple. It cannot be thus concluded by mere allegations of the couple that the
government has failed to protect the fundamental rights of the couple. Also the
petitioner is alleging the government for failing to protect & not violating the
fundamental right of the petitioner.

21 | P a g e
[Memorandum for Respondent]
 --9TH SEMESTER MOOT, RGNUL, 2019--

PRAYER

In the light of facts stated, issues raised, authorities cited & argument advanced, it is humbly
prayed that:

a) That the non-recognition of marriage does not amount to violation of fundamental rights
of the petitioner.
b) That the acts of media do not amounts to violation of fundamental rights of the petitioner.
c) That the petitioner should not be awarded compensation by the government.

And/Or

Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience. And for this, the Petitioner as in duty bound, shall humbly pray.

Sd-
Counsels on behalf of the Respondent

22 | P a g e
[Memorandum for Respondent]