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I

TEAM CODE: NMCC 16

BEFORE THE SUPREME COURT OF UNION OF NILFGAARD

IN THE MATTER OF

HATTER CLINIC V. UNION OF NILFGAARD

(PETITIONER) (RESPONDENT)

CLUBBED WITH

MR. ATULYA & ANR. V. UNION OF NILFGAARD

(PETITIONER) (RESPONDENT)

CLUBBED WITH

MR. RAJIV & ANR. V. UNION OF NILFGAARD

(PETITIONER) (RESPONDENT)

CLUBBED WITH

MR. SUHAS & ANR. V. MS. SAGRIKA

(PETITIONER) (RESPONDENT)

UNDER ARTICLE 139(A)(1) OF THE CONSTITUTION OF UNION OF NILFGAARD

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS

II

TABLE OF CONTENTS

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

STATEMENT OF JURISDICTION......................................................................................... V

IDENTIFICATION OF ISSUES .............................................................................................VI

STATEMENT OF FACTS .................................................................................................... VII

SUMMARY OF PLEADINGS.................................................................................................. 1

PLEADINGS ............................................................................................................................. 2

[I] THE SURROGACY ARRANGEMENT ORDINANCE, 2019 IS UNCONSTITUTIONAL

.................................................................................................................................................... 2

[A]. The provisions of the ordinance derogate the principle of art. 14 of the constitution........ 2 [B]. The provisions of the ordinance derogate the principle of art. 19(1)(g) of the constitution .................................................................................................................................................... 4 [C]. The provisions of the ordinance contradict the principle of art. 21 of the constitution...... 6 [D]. The international covenants & responsibility are ignored.................................................. 8 [II] NON-RECOGNITION OF HOMOSEXUAL UNIONS IS AGAINST THE CONSTITUTION OF THE UNION OF NILFGAARD ......................................................... 10 [A] discrimination based on sexual orientation is against the fundamental right of Nilfgaardian citizen ....................................................................................................................................... 10 [B] Right to marry of choice is secured under right to privacy ............................................... 11 [C] Hindu personal marriage laws do not specifically ban same sex marriage ....................... 14 [D] It is against the doctrine of progressive realization of the rights under the constitution ... 15 PRAYER .................................................................................................................................. 18

III

INDEX OF AUTHORITIES

• (A Regd. Society) v. Union of India CASES
• Arunkumar vs. The Inspector General of Registration (2019)
  • 201] Ashok Kumar Gupta, Vidya Sagar and others versus State Of Uttar Pradesh [1997 (5) SCC
• B.K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 A.P.
• Chintaman Rao v.s The State of MP, A.I.R 1951 S.C.
• Constitution of India,
• Consumer Education and Research Centre & Ors. v.s Union of India, A.I.R. 1995 S.C.
• Deep Chand v.s State of U.P, A.I.R. 1959 S.C. 648 (India).
• Devika Biswas v. Union of India, A.I.R. 2016 S.C.
• Justice KS Puttaswamy (retd) and another v. Union of India and others.
• Minerva Mills Ltd. & Ors vs Union Of India & Ors, A.I.R. 1980 S.C. 1789 (India)................
  • 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19;
• Murlidhar Aggarwal & Anr. v. State of Uttar Pradesh, A.I.R. 1974 S.C.
• National Legal Services Authority (NALSA) VS. Union Of India AIR 2014 SC 1863 10,
• Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors., A.I.R. 2018 S.C. 4321.
  • April 28, 2015—Decided June 26, Obergefell Et al. v. Hodges, Director, Ohio Department of Health, Et al. No. 14–556. Argued
• Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180 (India).
• R. Rajgopal v.s The state of Tamil Nadu, A.I.R. 1995 S.C.
• Ram Krishna Dalmia v.s Justice S.R. Tendolkar and Ors, A.I.R. 1958 S.C. 53 (India)............
• Shafin Jahan vs. Asokan K.M. and Ors 12,
• Shafin Jahan vs. Asokan K.M. and Ors.
• Shakti Vahini v. Union of India
• State of Kerala and Anr. v. N.M. Thomas and Ors.AIR 1976 SC
• State of Maharashtra v. Indian Hotel and Restaurant Association, A.I.R. 2013 S.C. 2582.......
• Article 21, Constitution of India, STATUTES
• Civil Partnership Act, 2004...................................................................................................... IV
• Egan v Canada Constitution of Aressia I
• Hindu Marriage Act,
• Marriage (Same Sex Couple) Act,
• Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors.
• The Surrogacy Arrangements Ordinance, 2019.........................................................................
• Universal Declaration of Human Rights

V

STATEMENT OF JURISDICTION

The Petitioner have been called to approach to this Hon’ble court under article 139(A)(1) of Constitution of Nilfgaard.

VI

IDENTIFICATION OF ISSUES

[I] WHETHER SURROGACY ARRANGEMENTS ORDINANCE, 2019 IS

UNCONSTITUTIONAL?

[II] WHETHER NON-RECOGNITION OF HOMOSEXUAL UNIONS IS AGAINST THE

CONSTITUTION OF THE UNION OF NILFGAARD?

VII

STATEMENT OF FACTS

BACKGROUND:

The Union of Nilfgaard is one of the most populous democracies in the world. It is a religiously and ethnically diverse nation, with deep cultural beliefs and complex social mores. Having children and epitomizing motherhood is considered very important. It allowed various sections of society to conceive children including members from LGBTQ community, single parents, unmarried couples in live- in relationships, divorced individuals and couples who suffered from some form of infertility related issues. Despite multiple efforts in the past, due to a number of underlying issues, no standardized law had seen the light of the day to regulate commercial surrogacy. A newly formed government decided to regulate the altruistic surrogacy procedure and ban commercial surrogacy. In December 2018, the Surrogacy Arrangements Bill, 2018 ("Bill") was introduced and passed in the Lower House of the Parliament of Union of Nilfgaard. However, in July 2019 the Bill was rejected by the Upper House. When the government fell short of a majority in the Upper House, it decided to bring an Ordinance to regulate surrogacy. WRIT PETITION FILED BY HTTER CLINIC: There was a Hatter Clinic in Ariana, a State in the Union of Nilfgaard, it was known for its exemplary services for commercial surrogacy procedures. Clinic tries to keep proper record register and also ensuring their full health and wellbeing. The promulgation of the Ordinance which banned commercial surrogacy acted as a death warrant for these businesses. It imposed restrictions on the surrogacy practice and made the business of Hatter clinic and others completely unviable. This resulted in the retrenchment of a number of surrogate mothers on their pay role and made it impossible for clinic to continue paying the premium of their employee health insurance. This put the Hatter Clinic under huge financial jeopardy. Aggrieved by the restrictions imposed by the ordinance, the Hatter Clinic filed a writ petition to challenge the constitutionality of the Ordinance before the High Court of Ariana. PETITION FILED BY MR. ATULYA & MS. ANNA: One married couple namely Mr. Atulya, and his wife Mrs. Anna were also hatter clinic’s clients. Ms. Anna's family was suffering from Leber hereditary optic neuropathy (LHON) syndrome. Ms. Anna feared that she might be the carrier of this genetic disease and same will be transmitted to her off springs. This couple decided to conceive a child through surrogacy.

VIII

They approached the Hatter Clinic for a surrogacy arrangement. Ms. Kritya who is an unmarried, educated and independent women agreed to become a surrogate mother. This couple entered into a surrogacy contract wherein inter alia it was agreed that through artificial insemination using Mr. Atulya's sperm, Ms. Kritya will be impregnated. Under the contract she was bound to hand over the child to Mr. Atulya and Ms Anna. Pursuant to the traditional surrogacy contract, advance payment was made to Ms. Kritya. Afraid of the penal consequences under the ordinance, Ms. Kritya backed out of the traditional surrogacy contract. Being aggrieved by the provisions of the ordinance which banned commercial surrogacy, Mr. Atulya and Ms. Anna challenged the provisions of the ordinance before the High Court of Ariana. PETITION FILED BY MR. RAJIV & MR. RHYTHM: In the State of Tarakota, Mr. Rajiv and Mr. Rhythm being Nilfgaardian citizens, were gay couples belonging to Hindu religion. They met in 2015 and fell in love with each other. after a live-in relationship of three years, they decided to get married. Due to societal backlash, they had done secret ceremony in a temple to solemnize marriage. Subsequently, they were unable to register their marriage under the Hindu Marriage Act, 1955. Having failed to provide legal recognition to their marriage, Mr Rajiv and Mr Rhythm made an attempt to move on with their lives. They always dreamt of having a family and decided that by utilizing the surrogacy procedure they will relish the joy of parenthood. The ordinance being exclusionary allowed only a certain set of people to become surrogate parents. Section 4(c) (II) imposed restrictions on couples that they should be "married for at least 5 years and are Nilfgaardian citizen". This provision has made it nearly impossible for Mr Rajiv and Mr Rhythm to become biological parents and being aggrieved by the ordinance they challenged the provisions of the ordinance before the High Court of Tarakota. WRIT PETITION FILED BY MR. SUHAS & MR. SUHASANI: In the State of Kimanu, a State in Union of Nilfgaard, Mr. Suhas and Mrs. Suhasani a married couple were unable to have children. Thereafter, in April 2019, Mr. Suhas and Mrs. Suhasani entered into a surrogacy contract with Mrs. Sagrika for a sum of Rs. 15,00, 000/-.Asper the surrogacy contract, the gametes were provided by Mr. Suhas and Mrs. Suhasani, and Mrs. Sagrika agreed to bear and give birth to a child for Mr. Suhas and Mrs. Suhasani with the intention of handing over the child three weeks after the birth. Subsequently, after the birth of

IX

child on 21th January 2020, she changed her mind and decided to keep the child and forgo the money. Thereafter, Mr. Suhas and Mrs. Suhasani filed a petition for a Writ of Habeas Corpus seeking custody of the child before the High Court of Kimanu. Since the promulgation of the Ordinance, the aforesaid writ petitions were filed before different high court in the Union of Nilfgaard challenging the provision of the ordinance. As the cases involved substantial question of general importance, the supreme court of Nilfgaard on its own motion transferred the writ petitions pleadings before different high courts to itself. After completion of the pleadings the Supreme Court listed the writ petitions for final hearing on April 28, 2022.

SUMMARY OF PLEADINGS

[I] THE SURROGACY ARRANGEMENTS ORDINANCE, 2019 IS

UNCONSTITUTIONAL

It is argued that the Surrogacy Arrangements Ordinance, 2019 is unconstitutional because it trances grace the individual's fundamental rights, it violates Article 14,19(1)(g) & 21 of the Constitution of Nilfgaard. Due to its specific restrictions allowing only heterosexual couples who have been married for five years to undertake surrogacy violated fundamental rights of the petitioners. The proposed ordinance violates Article 19(1)(g), which ensures Milgard’s "freedom of trade and profession". The restriction on commercial surrogacy jeopardizes the livelihoods of many impoverished women in the nation who have used surrogacy to educate their children, start companies, and support their families financially. Therefore, the Ordinance fails to strike a balance between rules and rights [II] NON-RECOGNITION OF HOMOSEXUAL UNIONS IS NOT AGAINST THE CONSTITUTION OF THE UNION OF NILFGAARD It is argued that non-recognition of homosexual unions is against the constitution of the union of Nilfgaard for the reason that discrimination based on sexual orientation is against the fundamental right of Nilfgaardian citizen under article 15 of the constitution of Nilfgaard. And right to marry of choice is secured under Right to Privacy under article 21 of the constitution but the rights of homosexual couple to marry of their choice is recognised by the constitutional court and deprivation of the same will cause injustice One of the arguments against recognising same sex marriage is it is against the culture of society. But culture cannot come against the fundamental right of the citizen, they have all the right to enjoy irrespective of the public faith in it. it is the duty of this court to see the issue in light of the depravity faced by such individuals of a community and progressively allow them govern under the personal marriage laws of the Union of Nilfgaard.

PLEADINGS

[I] THE SURROGACY ARRANGEMENT ORDINANCE, 2019 IS

UNCONSTITUTIONAL

1. It is most humbly submitted before the Hon'ble Supreme Court of Nilfgaard that the Surrogacy Arrangements Ordinance, 2019 is unconstitutional because the provisions of the ordinance derogate the principle of art. 14 of the Constitution [A], the provisions of the ordinance derogate the principle of art. 19(1)(g) of the Constitution [B], the provisions of the ordinance contradict the principle of art. 21 of the Constitution [C], the international covenants & responsibilities are ignored [D]. [A]. The provisions of the ordinance derogate the principle of art. 14 of the constitution
2. It is most humbly submitted before the Hon'ble Supreme Court of Nilfgaard that Due to the ordinance's restrictive nature, only a limited number of persons were permitted to become surrogate parents. Section 4(c) (II) of the ordinance-imposed restrictions on couples, requiring them to be " married for at least five years and a Nielfgaardian citizen"^1. This provision has made parenthood nearly impossible for the LGBTQ+ population and reinforces society's typical patriarchal values by assuming heterosexual marriage as the foundation for parenthood, which violates the fundamental rights of the LGBTQ+ inhabitants, single men, and women.
3. Due to its specific restrictions limiting the age of the intended couple or surrogate mother, prohibiting commercial surrogacy, and allowing only heterosexual couples who have been married for five years to undertake surrogacy violated the fundamental rights of the petitioners.
4. The ordinance violates the Nilfgaardian Supreme Court's "Golden Triangle" criteria which are set in the case of Minerva Mills Ltd. & Ors vs. Union of India & Ors^2 for determining the constitutional legitimacy of government-enacted legislation. This test of reading equality, liberty, and freedom of rights in conjunction tries to guarantee that the state does not infringe on an individual's fundamental rights, it violates Article 14,19(1)(g) & 21 of the Constitution of Nilfgaard. (^1) The Surrogacy Arrangements Ordinance, 2019, S. 4 C (II). (^2) A.I.R. 1980 S.C. 1789.

5. Article 13 of the Constitution of Nilfgaard safeguards fundamental rights. It is the path to judicial review and assists in reigning in the State's enactment of legislation. It not only governs post-constitutional law but also pre-constitutional legislation that remains in force. It states that “any law, ordinance, order, bye-law, rule, regulation, notification, custom or usages having a territory of Nilfgaard which violates & contradicts the fundamental rights which are in part III of the Constitution will be declared or considered as void or invalid”.^3 6. The Hon'ble Supreme Court of Nilfgaard in the case of Deep Chand vs. State of U.P.^4 held that “post-constitutional law made under Article 13(2) which contravenes fundamental rights is nullity from its inception and a stillborn law, it is void ab into”^5_._
6. Nilfgaard is a secular country, if any secular law is brought by the government in this country, then it should be for every burning people of this country and not for some people & this ordinance permits surrogacy solely between married couples and thereby excludes members of the LGBTQ community, live-in couples, and single, divorced, or bereaved parents, criminalizing their reproductive autonomy in this regard.
7. Art. 14 of the Constitution of Nilfgaard states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of Nilfgaard''^6_._ The Doctrine of Reasonable Classification has been understood to mean that class legislation is prohibited when adopting a law.
8. Additionally, the classification must pass the test of intelligible differentia with the Act's aim being related to the classification. Legislation must avoid unjust discrimination by giving advantages to a 'class of people or by arbitrarily picking individuals who lack distinguishing traits.
9. The decision of the Hon’ble Supreme Court of Nilfgaard in the case of Ram Krishna Dalmia vs. Justice S.R. Tendolkar and Ors.^7 indicates that the notion of reasonable classification's comprehensible differentia shall be determined by the case's formulation of specific principles. Any legislation that violates these criteria will be regarded to be in violation of Article 14. (^3) INDIA CONST. art. 13. (^4) A.I.R. 1959 S.C. 648. (^5) Id. (^6) INDIA CONST. art. 14. (^7) A.I.R. 1958 S.C. 53.

11. Under the Ordinance, any person who has been discriminated against because they come under the limits might also be classified as a class; moreover, the legislation's ability to apply restrictions is harmed by the legislation's ambiguity.
12. The Ordinance imposes such limits that do not pass the reasonable categorization test, owing to the restricted and conditional access granted to some married couples who meet the specified age limit for the intended couple and surrogate mother. Additionally, the Ordinance disqualifies individuals from surrogacy on the basis of their marital status, time period of marriage, the ages of the parties involved, and sexual orientation, among other factors.
13. Therefore, by denying gays and unmarried couples the freedom to choose surrogacy, the Ordinance strengthens the majoritarian Nilfgaardian morality that stigmatises homosexuality and unmarried persons living together. It is important to emphasise here that homosexuality and living in a live-in relationship are not banned in the country per se, and restricting access to altruistic surrogacy is a clear example of discrimination against these minority. [B]. The provisions of the ordinance derogate the principle of art. 19(1)(g) of the constitution
14. It is most humbly submitted before the Hon'ble Supreme Court of Nilfgaard that the ordinance disregards the strength of contract law in enforcing a surrogate's rights. It violates Article 19(1)(g) of the Nilfgaardian Constitution by prohibiting women from earning a living by deliberately working as surrogates and instead compels them to do reproductive labour for free. This dismissive stance exposes surrogates to further commercialization, as they will face forceful moral pressure from their families to lease out their wombs for the greater sake of the family unit, further entrenching their servitude.
15. The proposed ordinance violates Article 19 in general, and especially Article 19(1)(g), which ensures Nilfgaard’s "freedom of trade and profession"^8. Not only do surrogate moms benefit from the surrogacy market, but so do the various surrogacy clinics around the nation. A blanket prohibition on commercial surrogacy is not a fair restriction since it jeopardizes the interests of several players in this multi-Ordinance on-dollar sector. (^8). INDIA CONST. art. 19, cl. 1, s. cl. g.

16. The Hon'ble Supreme Court of Nilfgaard in the case of Chintaman Rao vs. The State of M.P,^9 correctly constrained the term ‘restrictions'^10 in Article 19(6), stating that “the phrase 'reasonable restriction' imposed a limitation on a person's enjoyment of the right that should not be arbitrary or excessive in nature beyond what is necessary for the public interest”^11. Additionally, the Court determined that the legislation should strike an appropriate balance between the freedom allowed by Article 19(1)(g) and the social supervision provided by Article 19(6).
17. By criminalizing commercial surrogacy, the government effectively eliminates individual liberties and fails to find the necessary balance between individual liberty and societal control. In State of Maharashtra v. Indian Hotel and Restaurant Association,^12 the Supreme Court held that “a total prohibition of bar dancing is unconstitutional because it results in many women being forced into prostitution and violates Article 19(1)(g) of the Constitution's right to carry on one's profession or occupation”^13.
18. Likewise, prohibiting commercial surrogacy outright and permitting only altruistic surrogacy violates Article 19(1)(g) of the Constitution. And it will fall short of the proposed Act's purpose, since surrogates bearing a child for an intended couple may still be exploited, the only difference being that she will not be compensated. Additionally, any such blanket or partial prohibition will push the sector underground. Surrogacy generates revenue for not just surrogate moms, but also for the country's many surrogacy facilities.
19. Therefore, the Ordinance jeopardizes the interests of several players in this multi- Ordinances dollar Nilfgaard sector by outlawing commercial surrogacy entirely. As it is also unjustifiable as a fair constraint. In this opinion, the Ordinance fails to strike a balance between rules and rights, revealing a legislative process lacking the expertise necessary to combine the two successfully. (^9) A.I.R 1951 S.C. 118. (^10) INDIA CONST. art. 19, cl. 6. (^11) INDIA CONST. art. 19, cl. 1, s. cl. g. (^12) A.I.R. 2013 S.C. 2582. (^13) Id.

[C]. The provisions of the ordinance contradict the principle of art. 21 of the constitution.

20. It is most humbly submitted before the Hon'ble Supreme Court of Nilfgaard that the ordinance infringes on the "right to livelihood"^14 and "right to reproductive autonomy"^15 contained in Article 21 of the Constitution. The restriction on commercial surrogacy jeopardizes the livelihoods of many impoverished women in the nation who have used surrogacy to educate their children, start companies, and support their families financially.
21. Although the Constitution does not specifically mention surrogacy, it has been incorporated in the broadest interpretation of Article 21 via numerous court decisions. The right to control one's own body and reproduction has been included into the right to privacy, which the Supreme Court of Nilfgaard recognised as a fundamental right under Article 21.
22. The Hon'ble Supreme Court of Nilfgaard in the case of R. Rajgopal vs. State of Tamil Nadu.^16 The “right to life”^17 encompasses the 'right to privacy'^18 as stated. Individuals have the right to make choices about family, marriage, reproduction, motherhood, and childbirth.
23. The Hon'ble Supreme Court of Nilfgaard declared in Consumer Education and Research Centre & Ors. vs. Union of India^19 that “ the term 'life' as defined in Article 21 of the Constitution has a far broader meaning and encompasses the right to subsistence”^20_. Olga Tellis vs. Bombay Municipal Corporation_^21 upheld this premise as well.
24. However, the Surrogacy Ordinance violates this "right to livelihood"^22 by prohibiting commercial surrogacy entirely, removing an important opportunity for poor women to earn desperately needed money or to achieve financial independence or stability for themselves and their families by consenting to be surrogates rather than receiving monetary compensation.
25. While it is true that exploitation of impoverished women is widespread in Nilfgaard, a blanket ban on commercial surrogacy does not do them justice; rather, it denies them the right to livelihood given to women by the Nilfgaardian Constitution. (^14) INDIA CONST. art. 21. (^15) INDIA CONST. art. 21. (^16) A.I.R. 1995 S.C. 264. (^17) Id. (^18) Id. (^19) A.I.R. 1995 S.C. 922. (^20) Id. (^21) A.I.R. 1986 S.C. 180. (^22) INDIA CONST. art. 21.

26. Additionally, the Nilfgaardian Supreme Court interpreted the right to reproductive autonomy to indicate that parents have the authority to select the mode of parenting, which in this instance is either organically or through surrogacy. Normatively and constitutionally, reproduction and parenting are beyond the state's sphere, and any interference with this decision constitutes a violation of this Fundamental Right. The right to life encompasses the right to reproductive autonomy in other words, the right to conception and parenting.
27. The Supreme Court of Nilfgaard acknowledged the right to reproduction as a critical component of the 'right to life'^23 under Article 21 in Devika Biswas vs. Union of India^24 Women have the right to reproductive rights, which include the right to carry a child to term, the right to give birth, and the right to raise children. Additionally, they encompass the rights to privacy, dignity, and bodily integrity. Thus, confining surrogacy to heterosexual couples and widowed or divorced women within a specified age bracket and denying reproductive options to LGBT individuals, single individuals, and elderly couples violates its Article 21. 28. The Constitution prohibits the state from interfering with a person's prerogative, whether the kid is born naturally or via surrogacy. In B.K. Parthasarthi vs. Government of Andhra Pradesh,^25 the Andhra Pradesh High Court held that “the state's interference with procreation constitutes a direct infringement on one's ‘right to privacy’,” 26 which was recognised as a component of the right to life under Article 21 in K.S. Puttaswamy v Union of India^27 , where the bench held that “privacy of any person encompasses personal autonomy relating to the body, mind, and ability to make choices.”^28 The Supreme Court’s decision in Suchita Srivastava v. Chandigarh Administration^29 , “a woman’s right to make reproductive choice, including the choice to procreate or abstain from procreating has been recognized as part of her personal liberty under Article 21 of the Indian Constitution”. 30
28. The freedom to choose regarding reproduction is really a highly personal and private decision that should be made by women and governed by their bodies, but this measure (^23) INDIA CONST. art. 21. (^24) A.I.R. 2016 S.C. 4405. (^25) A.I.R. 2000 A.P. 156. (^26) Id. (^27) A.I.R. 2017 S.C. 4161. (^28) Id. (^29) A.I.R. 2010 S.C. 235 (^30) Id.

interferes with that process. If a lady wishes to assist a destitute couple by producing a child of her own, the state should not intervene; rather, such deeds should be commended.

30. Therefore, the ordinance obviously violates Article 21's right to livelihood, right to privacy, and right to reproductive autonomy. Even after a decade of amendments, the surrogacy ordinance still needs a complete statute that is compatible with contemporary cultural norms around surrogacy. [D]. The international covenants & responsibility are ignored
31. It is most humbly submitted before the Hon'ble Supreme Court of Nilfgaard that the ordinance violates many protections for human life, health, and dignity contained in Nilfgaard’s several international accords. By interfering with an individual's reproductive rights, the proposed ordinance violates the universally recognised "right to family formation''^31 guaranteed in Article 16 of the Universal Declaration of Human Rights. Additionally, the Ordinance faces a challenge under Article 16(1)(e) of the Convention on the Elimination of All Forms of Discrimination Against Women, which requires state parties to guarantee that men and women have equal rights "to choose freely and responsibly the number and spacing of their children."^32
32. Additionally, the UN Special Rapporteur on the Right to Health has emphasised the critical nature of reproductive, maternal, and sexual rights, including the right to family planning services, in achieving the best attainable quality of physical and mental health. By limiting access to altruistic surrogacy, the Ordinance also contradicts the state's fundamental commitment to provide equal treatment and non-discrimination in access to reproductive health services.
33. The Hon'ble Supreme Court of Nilfgaard noted in Murlidhar Aggarwal & Anr. vs. State of Uttar Pradesh^33 that “ public policy does not stay static within a society but changes over time and even within the same generation. Public policy is pointless if it is always confined to predetermined moulds”^34_._ (^31) Universal Declaration of Human Rights, art. 16. (^32) Universal Declaration of Human Rights, art. 16, cl. 1, s.cl. e. (^33) A.I.R. 1974 S.C. 1924. (^34) Id.

34. Additionally, the government should implement regulations that are consistent with individual’s basic rights and reflect evolving social mores, as well as take any other action necessary to ensure that this choice is available safely and with dignity, since surrogacy is a gift of medical technology to humanity.
35. The Ordinance is an example of errors compounding to become blunders. Laws that prohibit behaviour on moral grounds transfer accountability away from the law and onto the person. They aim to erect a wall around moral and civic qualities in order to resist the incursion of what they see as profiteering economic principles. Similarly, this law disregards several facets of human liberty, establishing parameters that fall short of the fair, just, and reasonable criteria necessary to determine its constitutional legitimacy.
36. Therefore, the Ordinance fails to strike a balance between rules and rights, and it is not legally legitimate, as shown by the interpretation of Articles 14, 21, and 19(1)(g), as well as by the Supreme Court's ruling in the landmark cases.

[II] NON-RECOGNITION OF HOMOSEXUAL UNIONS IS AGAINST THE

CONSTITUTION OF THE UNION OF NILFGAARD

37. It is humbly submitted before the hon’ble supreme court of Nilfgaard non-recognition of homosexual unions is against the constitution of the union of Nilfgaard for the reason that discrimination based on sexual orientation is against the fundamental right of Nilfgaardian citizen [A], right to marry of choice is secured under the right to privacy[B], Hindu personal marriage laws do not specifically ban same-sex marriage[C] and it is against the doctrine of progressive realization of the rights under the constitution [D]. [A] discrimination based on sexual orientation is against the fundamental right of Nilfgaardian citizen
38. The Constitution of Union of Nilfgaard provides that “ the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. In Navtej Singh Johar,^35 supreme court while recognising the rights of same-sex couples moved away with a narrow interpretation of Article 15 36 and ruled that any ground of discrimination whether directly or indirectly connected to the corollary of sex will constitute discrimination under Article 15 of the Constitution of Union of Nilfgaard.
39. The supreme court of India while recognising the rights of LGBTQ community ruled that gender is integral part of sex under the grounds of discrimination.^37 Any discrimination based on the gender of an individual will be against Article 15 of the Constitution of the Union of Nilfgaard. People belonging to LGBTQ community are entitled to full range of constitutional rights including liberty granted by the Constitution of the Union of Nilfgaard.^38
40. The Supreme Court of Canada^39 has come up with a test to determine whether a distinction created by law constitutes discrimination. For that purpose, they observed wo aspects of determination. First whether the right is denied based on the personal characteristics. Second whether the distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others. (^35) Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors., A.I.R. 2018 S.C. 4321. (^36) INDIA CONST. art. 15. (^37) National Legal Services Authority (NALSA) VS. Union Of India A.I.R. 2014 S.C. 1863. (^38) Supra note 35. (^39) James Egan and John Norris Nesbit vs. Her Majesty The Queen in Right of Canada [1995] 2 S.C.R. 513.

41. Same sex couples are not being given the legal sanction as a married couple under Hindu Marriage Act, 1955 and Special Marriage Act, 1964. The provision is in direct infringement of the rights of the homosexual couple as sexual orientation is the corollary of gender identity recognised under Article 21 of the constitution of the union of Nilfgaard and protected under Article 15 of the constitution of Nilfgaard.^40 Thus preventing Mr. Rajiv and Mr. Rhythm to register their marriage under the above-mentioned laws depriving of them enjoying such rights.^41
42. Homosexuality is completely natural condition^42 so as the homosexual union. State cannot discriminate and prevent same sex couple to register their marriage and enjoy their married life. Additionally, Justice Chandrachud in his concurring view in Navtej Singh Johar^43 observed that members of the LGBTQ community cannot be ignored while securing constitutional rights, they are entitled to full range of constitutional rights and equal treatment of law and an equal citizenship. Here in this case not recognising a same sex marriage^44 is going against the fundamental rights of individual and this discriminatory exclusion will not pass the test of constitutional validity.
43. It is here to mention that although sex and gender both are fundamentally different, sex is more of a biological term which is decided based on the type of chromosomes, hormones and secondary sexual characters whereas gender is how an individual feels about themselves or their sexual orientation. Gender is integral part of sex and non-recognition of marriage based on sexual orientation of individuals is against the fundamental right of same sex couples.
44. Therefore, it is submitted that discriminating same sex couples to register their marriage under Hindu Marriage Act, 1955 and Special Marriage Act, 1954 will go against their fundamental rights guaranteed under the Constitution of the Union of Nilfgaard. [B] Right to marry of choice is secured under right to privacy
45. Right to life is guaranteed under the constitution of union of Nilfgaard^45 and it is the most precious human right^46. Right to life is not restricted to merely body existence,^47 but (^40) Supra note 37. (^41) Para 10, Moot proposition. (^42) Supra note 35. (^43) Id. (^44) Para 10, Moot Proposition. (^45) INDIA CONST. art. 21. (^46) Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors., A.I.R. 1981 S.C. 746. (^47) Id.

constitute all the basic necessities and functions of life which is essential for bare minimum expression of the human self.^48

46. The above-mentioned rights are reaffirmed by the apex court of union of Nilfgaard by the constitutional bench in the case of K.S. Puttaswamy and Anr. vs. Union of India and Ors^49. and Common Cause (A Registered Society) vs. Union of India and Anr^50_._
47. While recognising the right to marry of one’s choice the apex court of the Union of Nilfgaard in the case of Shafin Jahan vs. Asokan K.M. and Ors.^51 ruled 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.”
48. The Constitution of the Union of Nilfgaard provides liberty and autonomy to each and every individual, the liberty and autonomy include the ability to make decisions that recognises an individual’s personhood and identity.^52 The right to choose a partner of choice is included under the right to privacy and the decisions related to intimacies of marriage is the core zone of privacy^53.
49. The right to marry of one’s own choice is guaranteed under Article 21 of the Constitution of the Union of Nilfgaard^54. The Constitution of the Union of Nilfgaard protects the right to life^55. The right cannot be taken away except by a law which is substantively and procedurally just, fair and reasonable. The right is central to the pursuit of happiness^56 of a couple enjoying their marital life.
50. Marriage, love, procreation, partnership these matters are integral to right to privacy.^57 An individual’s autonomy as a person is based on the right to choose as to whom to love and whom to partner and innumerable other decisions related^58. (^48) Id. (^49) (2017) 10 SCC 1. (^50) (2018) 5 SCC 1. (^51) Id. (^52) Shafin Jahan vs. Asokan K.M. and Ors., A.I.R. 2018 S.C. 1933. (^53) Id. (^54) Id. (^55) INDIA CONST. art. 21. (^56) Supra note 52. (^57) Supra note 29. (^58) Common Cause (A Regd. Society) vs. Union of India A.I.R. 2018 S.C. 1665.

51. The supreme court of union of Nilfgaard in Puttaswamy case^59 ruled that there are three aspects of privacy in Nilfgaardian scenario- (i) privacy that involves the person, (ii) informational privacy and (iii) privacy of choice, which protects an individual’s autonomy over fundamental personal choices.
52. The Union of Nilfgaard have complex social mores^60 where a major chunk of people does not believe in same sex marriage. Homosexual couple have been living in the fear of societal backlash. Navtej Singh Johar^61 gave the community some relief so as to live the life of dignity but, the rights granted by Navtej Singh Johar^62 cannot be enjoyed at its fullest if they are not allowed to legally solemnize their marriage under Indian personal or special marriage laws.
53. Mr. Rajiv and Mr. Rhythm decided to get married after a live-in relationship of three years.^63 The choice should be respected because it’s their choice which is at the core of their privacy, social approval of the same should not be the basis to determine such rights of the individual^64. Social values are not greater than the constitutionally guaranteed freedom^65.
54. Although, homosexuality has been decriminalised in this court, but rights related to the togetherness if not granted will deprive the individuals of the community from enjoying right to marry. Civil rights like maintenance, adoption, parenthood are the rights related to right to marry and are essential in order to enjoy the right to be with the choice of self. Mr. Rajeev and Mr. Rhythm cannot enjoy their right with dignity unless their right to marry of their choice is not secured at its full potential. When two individuals choose each other as a life partner consensually, it is their manifestation of rights guaranteed under Articles 19 and 21 of Constitution^66.
55. Therefore, it is submitted that the rights of homosexual couple to marry of their choice is recognised by the constitutional court and deprivation of the same will cause injustice to the already suffering community. (^59) Supra note 29. (^60) Para 1, Moot Proposition. (^61) Supra note 35. (^62) Id. (^63) Para 10, Moot Proposition. (^64) Supra note 52. (^65) Supra note 52. (^66) Shakti Vahini vs. Union of India (2018) 7 S.C.C. 192.

[C] Hindu personal marriage laws do not specifically ban same sex marriage

56. Section 5 of the Hindu Marriage Act, 1955 provides for the conditions of a valid marriage. The mentioned conditions if not fulfilled makes the marriage void. Likewise other sections of the Act provide remedies if the marriage is not able to sustain^67 but the Act is not gender specific. The state or the laws cannot dictate the choice of partners or limit the free ability of subject to decide upon these matters^68.
57. Being cis-gendered is not necessary under the Hindu Marriage Act, 1955 that needs to be fulfilled in order to be a bride^69. The conditions laid down in section of the Hindu Marriage Act, 1955 should not be interpreted in a way that it lacks necessary changes or it cannot be changed^70. It is here to understand that meaning of the term bride would not only include only a cis-gendered woman, it would include a cis-trans woman, a trans gendered woman or any inter-sex individuals who identify themselves as bride^71.
58. The constitution protects the rights of individual to pursue the way of life, matters of love and partnership are central to the identity of individual^72. The law may provide for conditions as to nullity and validity of marriage but there no role of state to decide the personal choice of individual^73.
59. The high court of Madras in recent case allowed a cis-trans couple to register their marriage under the Hindu Marriage Act, 1955 including the transgender individual under the definition of bride^74. In the impugned case the same reasoning can be preferred and given the sanctity of marriage to Mr. Rajiv and Mr. Rhythm where one can be considered as bride and another as bridegroom depending upon how they identify themselves as. The court also analysed various mythological stories and came to a conclusion that allowing transgender marriage will not go against the tenets of Hinduism.^75
60. Although, the hon’ble court is not bound to accept the law prescribed by the high court but definitely can infer points discuss in the constitutional courts. High courts are also courts of importance where judges use their judicial mind an decide the rights of individuals. (^67) Under chapter ‘Nullity of Marriage and Divorce’, Hindu Marriage Act, 1955. (^68) Supra note 50. (^69) Arun Kumar vs. The Inspector General of Registration, W.P. (MD NO. 4125 of 2019 & W.M.P. (MD) No. 3220 of 2019. (^70) Id. (^71) Id. (^72) Supra note 52. (^73) Id. (^74) Supra note 69. (^75) Id.

61. Therefore, it is submitted that considering the current social need of the society, the same sex couple should also be included in the ambit of Hindu Marriage Act, 1955 and give the benefit to the community. [D] It is against the doctrine of progressive realization of the rights under the constitution
62. The Constitution of the Union of Nilfgaard is not mere a document delineating rights and duties of parties but a live document which have transformative power based on socio- legal developments in the country.^76 The constitution of Nilfgaard recognises the rights of homosexual couples and it does it by questioning the dominance of prevailing notions of sexes and genders and thus promotes equality.^77 The constitution of union of Nilfgaard is a dynamic and breathing document which senses its surroundings and tends to adapt based on needs and development of society^78.
63. It is the duty of the constitutional court to adopt such interpretation which do not retards the progress or impedes social integration rather it should adopt such interpretation that is in consonance to the ideals mentioned in the preamble to the constitution along with provisions of part III and IV of the constitution of union of Nilfgaard^79. 64. In NALSA^80 case it was ruled that : “It is now very well recognized that the Constitution is a living character; its interpretation must be dynamic. It must be understood in a way that intricate and advances modern realty.”
64. While stressing on the duty of constitutional courts to keep the constitution of the union of Nilfgaard a live and dynamic document in the case of Navtej Singh Johar^81 observed that: “… we are required to keep in view the dynamic concepts inherent in the Constitution that have the potential to enable and urge the constitutional courts to beam with expansionism that really grows to adapt to the ever-changing circumstances without losing the identity of the Constitution. The idea of identity of the individual and the constitutional legitimacy behind the same is of immense significance. Therefore, in this context, the duty of the constitutional courts gets accentuated. We emphasize on the role of the constitutional courts in realizing the evolving nature of this living instrument. Through its dynamic and purposive (^76) Supra note 35. (^77) Id. (^78) Id. (^79) Ashok Kumar Gupta, Vidya Sagar and others vs. State of Uttar Pradesh, 1997 (5) SCC 201 (^80) National Legal Services Authority (NALSA) vs. Union of India A.I.R. 2014 S.C. 1863. (^81) Supra note 35.

interpretative approach, the judiciary must strive to breathe life into the Constitution and not render the document a collection of mere dead letters.”

66. The constitution of the union of Nilfgaard fosters equality among the individuals so that the people in the union can enjoy their rights to its fullest potential. The constitution has been drafted in such a way to adapt to future needs that it knows the fact that the change is inevitable^82. The courts cannot keep looking to the rights the way it has been looking^83 rather it has to progressively impact the rights of citizens in order live up to the expectations of the founders of the nation. The purpose of having a constitution to foster the growth of rights and transform the society for better and this objective is the founding principle of transformative constitutionalism^84.
67. The supreme court of Canada while giving a progressive interpretation to the definition of marriage including same sex union in Re: Same Sex Marriage^85 observed that: “The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
68. The constitutional court of South Africa while recognising the rights of the same sex couple under the marriage laws directed the parliament to enact such to include same sex couples under the purview of marriage law^86 .The Supreme Court of United States while recognising the basic rights of same sex couple to marry held that same sex marriages to be recognised and treated equally with respect to opposite sex marriages^87. Moreover, England and Wales have a separate law^88 that recognises same sex marriages for ceremonies and civil rights.
69. One of the arguments against recognising same sex marriage is it is against the culture of society. But it is here to consider that culture cannot come against the fundamental right of the citizen, they have all the right to enjoy irrespective of the public faith in it. Law is meant to (^82) Id. (^83) Id. (^84) State of Kerala and Anr. vs. N.M. Thomas and Ors., A.I.R. 1976 S.C. 490. (^85) [2004] 3 S.C.R. 698. (^86) Minister of Home Affairs and Another vs. Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005). (^87) Obergefell Et al. vs. Hodges, Director, Ohio Department of Health, Et al. No. 14–556. Argued April 28, 2015 —Decided June 26, 2015. (^88) Marriage (Same-Sex Couple) Act, 2013 and Civil Partnership Act, 2004.