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GRAND INTRA MOOT COURT, 2018
TEAM CODE: P-21

MEMORIAL ON BEHALF OF PETITIONERS
GRAND INTRA MOOT COURT COMPETITION, 2018
IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDIA
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950
WRIT PETITION NO. __/2018 & __/2018
(IN THE MATTER OF ARTICLE 14, 15, 19 & 21 OF THE CONSTITUTION OF
INDIA AND SEC. 377 & 497 OF THE INDIAN PENAL CODE, 1860)
IN THE MATTER OF:
Mr. Rux ....................................................................................................PETITIONER NO. 1

V
UNION OF INDIA........................................................................................RESPONDENT
WITH
Ms. Rupali ................................................................................................PETITIONER NO. 2

V
UNION OF INDIA........................................................................................RESPONDENT
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIA
MEMORIAL ON BEHALF OF THE PETITION
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES................................................................................PAGE NO.3
STATEMENT OF JURISDICTION...................................................................PAGE NO.6
STATEMENT OF FACTS...................................................................................PAGE NO.7
STATEMENT OF ISSUES..................................................................................PAGE NO.8
SUMMARY OF PLEADINGS.............................................................................PAGE NO.9
ARGUMENTS ADVANCED.............................................................................PAGE NO.10
PRAYER..............................................................................................................PAGE NO.36
2
INDEX OF AUTHORITIES
1. CONSTITUTION OF INDIAN, 1950

2. INDIAN PENAL CODE, 1860
3. CRIMINAL PROCEDURE CODE
CASES
1. Mihir vs. State of Orissa 1992 CriLJ 488
2. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111
3. Bachan Singh, Sher Singh And Anr. v. State Of Punjab And Ors, AIR 1982 SC 1325
4. Om Kumar v. Union Of India, AIR 2000 SC 3689
5. State of Karnataka v. State of Tamil Nadu and Ors, Civil Appeal No. 2453 of 2007
decided on December 9, 2016
6. Rubinder Singh v.Union of India, AIR 1983 SC 65
7. Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538
8. Romer v. Evans 517 U.S. 620 (1996)
9. Deepak Sibal v. Punjab University, AIR1989 SC 903
10. Anuj Garg v. Hotel Association of India AIR 2008 SC 663
11. Kartar Singh v. State of Punjab (1994) 3 SCC 569
12. Khanu vs. Emperor 1925 Sind 286
13. Government vs. Bapoji Bhatt 1884 (7) Mysore LR 280
14. Brother John Antony vs State 1992 CrLJ 1352
15. State of Kerala vs. K Govindan (1969) CriLJ 818
16. Khandu vs. Emperor AIR 1934 Lahore 261, p 262
17. Lohana Vasantlal and Others vs. The State AIR 1968 Gujarat 252,
18. Fazal Rab Choudhary vs. State of Bihar AIR 1983 (SC) 323
19. K. A. Abbas v. Union of India, AIR 1971 SC 481
20. Vishaka v. State of Rajasthan, AIR 1997 SC 3011
21. Fuzlunbi v. K. Khader Vali, AIR 1980 SC 1730
22. State of Bombay v. Bombay Education Society, 1955 SCR 568
23. Punjab Province v. Daulat SinghAIR 1946 PC 66
24. Naz Foundation v. Government of NCT, 160 (2009) D.L.T. 277
25. Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1
26. Bhagvati, J. in Maneka Gandhi v. Union of India, AIR 1978 SC 597, pp. 620
27. National Human Right Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742
28. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295
29. Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802 pp. 811
30. Justice K. S. Puttaswamy (Retd.) & Anr. Vs. Union Of India & Ors. (2017) 10 SCC 1
[page 122]
31. Justice K. S. Puttaswamy (Retd.) & Anr. Vs. Union Of India & Ors. (2017) 10 SCC 1,
[page 124]
[page 263]
[page 73]
34. Gobind v. State of Madhya Pradesh (1975) 2 SCC 148, at page 156, para 22
35. Justice K. S. Puttaswamy (Retd.) & Anr. Vs. Union of India & Ors. (2017) 10 SCC 1
page 244
3
36. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608,
at page 619, para 8
37. Smt. Selvi v. State of Karnataka (2010) 7 SCC 263
38. Lawrence v. texas 539 U.S. 558 (2003)
39. Dudgeon v. U.K. Appl. No. 7525/76 ECHR
40. Norris v. Republic of Ireland [1988] ECHR 22
41. Modinos v. Cyprus 16 EHRR 485
42. Toonen v. State of Tasmania, Australia CCPR/C/46/D/488/1992
43. Leung T. William v. Secretary of Justice 2005 3 HKLRD 657 (Hong Kong Court of
First Instance)
44. Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1
45. Ashoka Kumar Thakur vs. Union of India & Ors (2008) 6 SCC 1
46. Mithu v. State of Punjab (1983) 2 SCC 277
47. John Vllamattom & Anr. v. Union Of India AIR (2003) SC 2902
48. Satyawati Sharma v. Union of India (2008) 5 SCC 287
49. Maneka Gandhi v. Union of India(1978) 2 SCR 62
50. R.D. Shetty v. Airport Authority(1979) 3 SCR 1014
51. E.P Royappa v. State Of Tamil Nadu1974(4) SCC 3
52. Thota Sesharathamma and Anr v. Thota Manikyamma by Lrs. and Others(1991) 4
SCC 312
53. Yusuf Abdul Azis v. State of Bombay and Anr. AIR 1954 SC 321
54. Sowmithri Vishnu v. Union of India AIR 1985 SC 1618
55. V. Revathi v. Union of India (1988) 2 (SCC) 72
56. Charu Khurana and Ors. V. Union of India & Ors. 2015(1) SCC 192
57. V. Revathi v. Union of India and Others, 1988 SCC 2 72
58. D.S. Nakara and others v. Union of India, 1983 AIR 130
59. ThotaSesharathamma and Anr v. ThotaManikyamma (Dead) by Lrs. and Others,
(1991) 4 SCC 312
60. State of W.B. v. Anwar Ali Sarkar AIR 1952 SC 75
61. NALSA v. Union of India (2014) 5 SCC 438
62. Barbier v.Connolly 113 U. S. 27 (1885)
63. Lindsley v. National Carbonic Gas Co220 U. S. 61 (1911)
64. Railway Express Agency v. New York336 U. S. 106 (1949)
65. McDonald v. Board of Election Commissioners394 U. S. 802 (1969)
66. Reed v Reed, 404 U.S. 71 (1971)
67. Griswold v. Connecticut, 381 U.S. 479 (1965); Bowers v. Hardwick 106 S. Ct 2841
68. Yusuf Abdul Aziz v State of Bombay 53 Bom LR 736
69. Sowmithri Vishnu v Union of India AIR 1985 SC 1618
70. Joseph Shine v. Union of India WRIT PETITION (CRL.) NO. 194 OF 2017
71. Air India v. NergeshMeerza and Others, 1982 SCR 1 438
72. National Legal Services Authority v. Union of India, 2014 AIR SC 2285
Other Authorities and Annexures
1. Section 61 of the Wolfenden Committee Report on Homosexuality and Prostitution
2. Affidavit by M.L.SONI, Under Secretary to the GoI, NACO, MOHFW
3. Annexure: 172nd Law Commission Report extracts
4. Article 1 CEDAW
4
Books
1. Ratanlal and Dhirajlal, Commentary on the Indian Penal Code, Justice KT Thomas
and MA Rashid, 35th edition.
2. Basu D.D, Commentary on The Indian Constitution,(Vol. 1, 8th edn, Wadhaw Nagpur
2007)
3. Basu D.D, Constitutional Law of India (8th edn, Lexis Nexis Butterworths Wadhaw
Nagpur 2008)
4. Chemerinsky Erwin, Constitutional Law (2nd edn, Aspen Publishers 2005).
5
STATEMENT OF JURISDICTION
THE PETITIONERS HUMBLY SUBMIT BEFORE THE HON’BLE SUPREME

COURT OF INDIA, THE MEMORANDUM FOR THE APPELLANT UNDER
ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950
THE HON’BLE SUPREME COURT OF INDIA HAS JURISDICTION TO TRY

THESE CASES UNDER ARTICLE 32 OF CONSTITUTION OF INDIA, 1950
THROUGH THE WRIT PETITIONS OF CERTIORARI
6
STATEMENT OF FACTS
The material case arises of writ petitions filed by Mr. Rux and Ms. Rupali in two different
writ petitions challenging two sections of IPC before the Supreme Court of India. Since both
the petitions are pertaining to single topic of homosexuality, it has been decided to hear it
as a clubbed matter before this hon’ble court.
1. Republic of India is a nation established on the principle of democracy and socialism.

The Constitutional itself assigns it a secular character.
2. The case got invoked after two actors entered into a wedlock leading to public
scrutiny in social media as it became the talk of the nation.
3. After few months differences arose between them as Ms. Rupali through social media
described her feelings which tainted Mr. Rux.
4. The matter got hyped when MMR Publications published an article defaming Mr.
Rux of Homosexual acts attaching with it a photograph of him in a compromised
position with a man.
5. This led to a chain of events of Mr. Rux being attacked by a group of unknown men
leading to an FIR by him for defamation. Also Mr. Rancho registered an FIR against
him under section 377.
6. Moreover Ms. Rupali challenged the constitutional validity of section 497 of not
charging homosexuals for crime of adultery.
7
STATEMENT OF ISSUES
1. WHETHER BOTH THE WRIT PETITIONS ARE MAINTAINABLE BEFORE

THE HON’BLE SUPREME COURT?
2. WHETHER SECTION 377 IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF

THE CONSTITUTION OF INDIA AND THUS SHOULD BE DECLARED
UNCONSTITUTION AND ULTRA VIRES OF THE CODE?
3. WHETHER HOMOSEXUALS COULD BE CONSIDERED AS THIRD

GENDER AND THUS CAN HOMOSEXUAL ADULTERY BE PENALIZED?
8
SUMMARY OF PLEADINGS
1. The current petitions filed under Art. 32 of the Constitution of India, 1950 are
maintainable as the Petitioners in the present matter possess the requisite locus standi
to challenge the impugned provisions and the Hon’ble Supreme Court has the
jurisdiction to hear the matter as there has been a violation of fundamental rights and
there is no bar to exhaustion of alternative remedies.
2. Section 377 of IPC is violative of the basic fundamental rights under Article 14,
15(1), 19(1)(a-d) and 21as it infringes upon the basic human rights of equality, one’s
sexual orientation, freedom of speech and expression and right to dignified life. The
said provision was enacted by the British in colonial India in 1860 and still continues,
even though the offence of homosexuality between consenting partners has been
abolished in England. Section 377 has become completely outdated and irrelevant in
the present times due to India becoming a progressive country where non procreative
sex based on consent cannot hurt the moral values of the society. Therefore this
petition points towards the decriminalization of section 377 as it will contribute
directly to the dignity of a homosexual being who are marginalized in the society and
discriminated on various grounds.
3. Section 497 of IPC is not gender neutral as it punishes only man while the acts was
committed with the consent of both person, this in violation of Article 14 as class
legislation is violative of Constitution of India. Moreover the exemption clause of
Article 15(3) cannot be applied as it was never the intention to bring criminal
exemption under the purview of this clause. Right to engage in sexual activities with
anyone in closed room is my right to privacy and any scrutiny is a clear violation of
Article 21. The impugned law is questioned in quite a few cases and is still going on
in Supreme Court of India in Joseph Shine case. The section does not speak of
anything related to transgender and is unclear and vague as transgender includes
LGBT as a whole. Thus it is contended that homosexual adultery should also be
considered as a part of adultery.
9
ARGUMENTS ADVANCED
I. WHETHER THE CURRENT PETITIONS FILED BEFORE THIS

HON’BLE COURT ARE MAINTAINABLE.
A. INTRODUCTION:
1. It is humbly contended before this Hon’ble Supreme Court that the current petitions
filed under Art. 32 of the Constitution are maintainable, as the Petitioners in the
present matter have the locus standi to challenge the impugned Sections and there is
violation of fundamental rights enshrined in Part III of the Constitution. Furthermore,
the writ is maintainable because the following writ is independent of alternative
remedies.
B. LOCUS STANDI:
2. It is contended that the Petitioners have the locus standi to challenge the impugned
Sections. The present matter entails that the issue in question is an issue of public and
national interest and the Petitioners has the locus standi to approach the Hon’ble
Supreme Court under Article 32 of the Constitution.
3. It is urged before the Hon’ble Court that the question of constitutionality or
unconstitutionality of the impugned Sections are very crucial for the public and the
national interest of the Country. And the petitions seeking to challenge the
constitutionality are contended to be maintainable under Article 32 of the
Constitution as they have been challenged against the social injustice and irrational
discrimination prevailing in the society due to the impugned Sections.
C. ISSUES ARE IN PUBLIC INTEREST:
4. It was held in the case of Bandhua Mukti Morcha v Union of India,1 that “PIL is not
in the nature of adversary litigation but it is a challenge and an opportunity to the
Government and its officers to make basic human rights meaningful to the deprived
and vulnerable sections of the community and to ensure them social and economic
justice which is the signature tune of our Constitution”.
1
Bandhua Mukti Morcha v Union of India AIR 1984 SC 802.
10
5. In the present matter Section 377 and 497 of the IPC gives rise to social injustice and
irrational discrimination. As per Section 377 carnal intercourse against the order of
nature irrespective of the fact that whether it is consensual or not, it amounts to a
criminal offence, due to which homosexuals can be brought under the purview of the
said Section and could be criminally charged.2 Whereas, section 497 of the IPC,
confers right only upon husband to prosecute the adulterer for committing adultery.3
6. It is contended that the petitioners have approached the court, acting bonafide and not
for personal gain, private profit or political or other oblique considerations. These
present writ petitions contain larger public related issues and are of public importance
as in the present case, the rights of the LGBT community have been suppressed.
Petitioners contends that not only their fundamental rights have been violated but
basic fundamental rights of a particular section of the society is also been affected.
7. And as held in the case of Sheela Barse v Union of India,4 “the technique of public
interest litigation serves to provide and effective remedy to enforce group rights and
interests”. Hence, it is humbly contended that in the present matter both the petitions
are maintainable because both of these matters are of grave public importance.
D. PETITIONERS HAVE LOCUS STANDI TO CHALLENGE
CONSTITUTIONALITY OF IMPUGNED SECTION:
8. It is contended before the Hon’ble Court that in a matter concerning social or public
interest, the Court would allow any member of an organization having a special
interest in the subject matter, to bring such petition and in cases of grave public
importance the Court may not insist on every technicality in the procedural law as
held in the case of Rural Litigation v. State of UP.5
9. In the present matter Petitioner no. 1 i.e. Mr. Rux has filed the petition challenging
the constitutionality of Section 377 of the IPC. Mr. Rux has the locus standi to
challenge the constitutionality because it is a party interested in the subject matter and
has been fighting for the rights of the homosexuals for many years.
2
Indian Penal Code, 1860, S. 377.
3
Indian Penal Code, 1860, S. 497.
4
Sheela Barse v Union of India AIR 1988 SC 2211.
5
Rural Litigation v. State of UP (1989) Supp (1) SCC 504.
11
10. The Supreme Court has entertained a number of petitions under Article 32
complaining of infraction of fundamental rights of individuals who have been unable
to take initiative to vindicate their own rights.6Also, the Supreme Court has ruled that
to exercise its jurisdiction under Art 32, it is not necessary that the affected person
should personally approach the Court. The Court can itself take the cognizance of the
matter and proceed suo moto or on a petition of any public spirited individual or
body.7
11. Furthermore, grievance in a public interest action, generally speaking is about the
content and conduct of governmental action in relation to the constitutional or
statutory right of the segments of society and in certain circumstances the conduct of
the government policies. And to facilitate filing of such cases by public minded
citizens the Court has lowered the Locus Standi thresholds as held in the case of Ranji
Thomas v Union of India.8
12. Similarly, in the present matter Petitioner no. 2 i.e. Ms. Rupali, has filed a writ
petition challenging the constitutionality of Section 497 of the IPC being violative of
Article 14 of the Constitution.9 She has the locus standi to file the petition as she is
the person aggrieved in the present matter and the said Section violates her
fundamental right of equality before law. As per the adultery law in India, a wife has
no right to prosecute the adulterer or the adulterous husband. In addition to this the
Section doesn’t account for matters when the person involved in the adultery with the
husband could be unmarried or can be of same sex, which was the situation in the
present matter.
13. And as held in the case of Chiranjit Lal v Union of India,10 Supreme Court of India
observed “thus anybody who complains of infraction of any of the fundamental rights
guaranteed by the constitution is at liberty to move the Supreme Court for the
enforcement of such writ”. In Poonam v Sunil Talwar case,11 it was held that the
citizens are entitled to appropriate relief under the provisions of Article 32 of the
6
Bodhisatva Gautam v Subra Chakraborty AIR 1996 SC 922,926.
7
Chairman, Railway Board v Chandrima Das AIR 2000 SC 998.
8
Ranji Thomas v Union of India (2000) 2 SCC 81; Chairman BPL Ltd. v SP Gururaja (2003) 8 SCC 567.
9
¶ 11, Moot Proposition.
10
Chiranjit Lal v Union of India AIR 1951 SC 41.
11
Poonam v Sunil Talwar (1) WLC 632, 1991 WLN UC 104.
12
Constitution on being Court satisfied that the Fundamental right of the petitioner has
been violated.12 Also this court has a constitutional duty to protect the fundamental
rights of the citizens of the country13 as right of access to the Supreme Court under
Article 32 itself is a fundamental right.14
14. Hence, it is humbly contended that both the petitioners have the locus standi to
approach the Hon’ble Supreme Court to challenge the constitutionality of the
impugned Sections.
E. INFRINGEMENT OF FUNDAMENTAL RIGHTS:
15. It is humbly contended that in the present matter, the impugned Sections violate the
fundamental rights under Article 14, 15, 19 and 21 of the Constitution and the sole
object of Article 32 is the enforcement of the fundamental rights guaranteed by the
Constitution.15
16. Right of access to the Supreme Court under Article 32 is a fundamental right itself.16
Article 32(1) provides a very important safeguard for the protection of the
fundamental rights of the citizens of India. And the Supreme Court has thus been
constituted so as to protect and guarantee the fundamental rights.17
17. In the present matter Section 377 and 497 of the IPC gives rise to social injustice and
irrational discrimination which ultimately violates Article 14 of the Constitution. As
per Section 377 any kind of carnal intercourse irrespective of the fact that whether it
is consensual or not, it amounts to a criminal offence, due to which homosexuals can
be brought under the purview of the said Section and could be criminally charged.
This violates Article 14, 19 and 21 of the Constitution. Whereas, section 497 of the
IPC, confers right only upon husband to prosecute the adulterer for committing
adultery. The wife has not been given any such right under this Section. Furthermore,
the said Section fails to take into account the cases in which the adulterer can be a
12
Daryao & Ors. v State of U.P. & Ors. AIR 1961 SC 1457.
13
M.C. Mehta v Union of India AIR 2006 SC 1325.
14
Common Cause, A Registered Society v Union of India AIR 1999 SC 3020.
15
A.K. Gopalan v The State Of Madras.Union Of India 1950 AIR 27, 1950 SCR 88.
16
Bodhisatwa v Subhra Charaborty AIR 1996 SC 922.
17
Prem Chand Garg v Excise Commisioner UP AIR 1963SC 996.
13
male or an unmarried woman which is arbitrary and amounts to discrimination on the
basis of sex.
18. And as held in Daryao v State of Uttar Pradesh,18 that “liberty of the individual and
the protection of the fundamental rights are the very essence of the democratic way of
life adopted by the Constitution and it is the duty of the Court to uphold such rights”.
Also, in Prem Chand Garg v Excise Commissioner, UP,19 the Supreme Court held
that this Court is the protector and guarantor of fundamental rights and cannot refuse
to entertain applications seeking protection against infringements of such rights.
Therefore, Article 32 can be invoked in order to enforce fundamental rights.
F. EXHAUSTION OF ALTERNATIVE REMEDY IS NO BAR FOR

ENFORCEMENT OF FUNDAMENTAL RIGHTS:
19. Alternative remedy is no bar to the Supreme Court for entertaining a petition under
article 32 as right to access to the Supreme Court under Article 32 is a Fundamental
Right itself20 hence; one can approach the Supreme Court for enforcement of one’s
fundamental rights. And the mere existence of an alternative remedy does not operate
as an absolute bar on the writ court21 as it is a process that the court chooses to opt out
of convenience and discretion22.
23
20. And as held in Daryao v State of Uttar Pradesh , when once the Court is satisfied
that the petitioner’s fundamental right has been infringed, it is not only its right but
also its duty to afford relief to the petitioner and he need not establish either that he
has no other alternative remedy, or that he has exhausted all remedies provided by the
law.
21. When the petitioner establishes that there is infringement of fundamental right, the
Court has no discretion but to issue an appropriate writ in his favour.24The Court has
25
emphasized in the case of Romesh Thapar that this Court is constituted as the
18
Daryao(n 9).
19
Prem(n 14).
20
Common (n 11).
21
Shivram Poddar v ITO AIR 1964 SC 1095; Also see Justice B.L. Hansaria’s, ‘WRIT JURSIDICTION’ (3 ed. 2005).
22
Ibid; Union of India v Hidalco Industries (2003) 5 SCC 194 (198); Union of India v. Bajaj Tempo Ltd. (1998) 9
SCC 281.
23
Daryao (n 9).
24
Khadak Singh v State of Uttar Pradesh AIR 1963 SC 1295.
25
Romesh Thapar v State of Madras AIR 1950 SC 124.
14
protector and guarantor of the Fundamental Rights and it cannot consistently with the
responsibility so laid upon it refuse to entertain applications seeking protection
against infringement of such rights.26
22. Therefore, an application made to the Supreme Court in the first instance, without
resorting to the High Court under Article 226 cannot be rejected on this basis.27
23. When a litigant approaches the Supreme Court, the matter is decided by the Court
finally. Art. 32 provides a guaranteed remedy for the enforcement of fundamental
rights. And this principle has been reiterated by the Supreme Court in numerous
cases.28It is a recognised principle to the rule29 that alternative remedy is no bar30
where a party come to the court with an allegation that his right has been or is being
threatened to be infringed by a law which is ultra vires the powers of legislature
which enacted it and as such void.
24. Though powers of Art. 32 and Art. 226 is concurrent however, there is no obligation
for any person to move High Court to enforce his fundamental31as when an applicant
approaches a High Court the petition is first decided by a single judge, an appeal then
lies to the division bench and thereafter an appeal may be taken to the Supreme
Court. And this may cause more delay and prove costlier to the petitioner then a writ
petition directly under Art. 32.
25. Supreme Court is superior to a High Court in many ways. It is the final interpreter of
the law for instance under Article 139A, the Supreme Court may transfer any case
pending before one High Court to another High Court or may withdraw the case to
itself32
26. Therefore, the court should not33 dismiss the petition merely because it appears that
an alternative remedy exists.34Existence of an alternative remedy does not affect the
jurisdiction of the court to issue writ.
27. Under Article 141 the law declared by the Supreme Court shall be binding on all
Courts, including High Courts, within the territory of India.35 Whereas, in case of a
26
Rashid Ahmed v Municipal Board AIR 1950 SC 163, 1950 SCR 566.
27
Romesh (n 22).
28
State of Madras v VG Row AIR 1952 SC 196; Khadak Singh v State of Uttar Pradesh AIR 1963 SC 1295.
29
Mrs. Y Theclamma v Union of India 1987 2 SCC 516.
30 th
S.P. Sathe, ‘Administrative Law’ 346, 5 ed. See Also, K.K Kochunni v State of Madras AIR 1959 SC 725.
31
Ramesh Thapar v State of Madras 1950 SCR 925.
32
National Textile Corporation v Commissioner of Income Tax (2008) 216 CTR MP 153.
33
It is but futile to use words like “cannot” and “must not” for the application of the doctrine is discretionary.
34
Ram and Shyam Company v State of Haryana 1985 3 SCC 267.
15
High Court judgement it can be challenged again and hence can cause inconvenience
to the petitioner. Under Article 144 all authorities, civil and judicial, in the territory of
India-and that would include High Courts as well-shall act in aid of the Supreme
Court.36Therefore, the Supreme Court is the best alternative to challenge the
constitutionality of a statute or other legal provisions.
28. Further, the Supreme Court has the power to issue writ of Mandamus under Article
32 to cancel an order of an administrative or statutory public authority or the
Government itself where it violates fundamental rights like Article 1437 Article 1638
and Article 1939.
29. It is humbly submitted that the petitioners seeking justice filed a petition which
should be maintainable and given a chance to be heard in the Supreme Court of law
no matter how laudable the object of respondent may be, 40as the arguments
presented in regard of the present issue and based on facts and circumstances of this
instant case, a writ petition is maintainable and it construes an appropriate remedy.
35
Vineet Narain v Union of India (1998) 1 SCC 241.
36
In Re, Lilly Thomas AIR 1964 SC 855, 1964 (6) SCR 229.
37
Ram Krishna v Tendolkar AIR 1958 SC 538.
38
Achuthan v State of Kerela AIR 1957 SC 490.
39
Jagannath v State of Orissa (1954) SCR 1046.
40
Daryao (n 9); Kochuni (n 25); Bishan Das v State of Punjab AIR 1961 SC 1570.
16
II. WHETHER SECTION 377 IS VIOLATIVE OF ARTICLE 14, 19 AND 21
OF THE CONSTITUTION OF INDIA AND THUS SHOULD BE
DECLARED UNCONSTITUTION AND ULTRA VIRES OF THE CODE.
A. INTRODUCTION:
1. India has come a long way since Independence, growing both on social and
economical front. Talking about social growth, basic human rights play a key role in
developing an equal and just society. One community in India, which struggles even
today for their basic human rights of identity, dignity, expression and life, are Indians
belonging to the LGBT community. In the below mentioned contentions, we shall see
how Section 377 of the Indian Penal Code (hereinafter S 377 & IPC respectively) is
violative of the basic fundamental rights under Article 14, 15, 19 and 21 along with
Section 377 becoming outdated in the present time.
B. TIMELINE OF SECTION 377 IN INDIA AND ENGLAND:
2. Section 377 is based on the Judeo-Christian moral and ethical standards, which is just
to procreate and any other sexual activity was found to be “against the order of
nature". The offence was introduced into British India with a presumption of a shared
Biblical morality (heavy sexual restraint). The British enacted the given law in 1860
during their colonial rule in India. The predecessor of Section 377 was clause 361 in
Macaulay’s first draft of the Penal Code, which defined a severe punishment for
touching another for the purpose of unnatural lust41.
3. The Wolfenden Committee Report on Homosexuality and Prostitution in September
1957 recommended that homosexual acts between consenting adults in private should
be decriminalized and presented an argument for a private space, free from state
interference, even if it involves activities that members of a society don’t like, as long
as they don’t harm anyone – popularly known as the Harm test42. It is important to
note here that in England the offence of homosexuality between consenting partners
41
Clause 361: “Whoever intending to gratify unnatural lust, touches for that purpose any person or any animal
or is by his own consent touched by any person for the purpose of gratifying unnatural lust, shall be punished
with imprisonment of either description for a term which may extend to 14 years, and must not be less than
two years”
42
Section 61 of the Wolfenden Committee Report on Homosexuality and Prostitution
17
has been abolished by the Sexual Offences Act 1967, whereas in India, the consent is quiet
immaterial43 for constituting an offence as defined under this section.
C. SECTION 377 VIOLATIVE OF ARTICLE 14:
4. Right to equality not only means right to be not discriminated but also protection
against arbitrary or irrational act of the state44. Art. 14 lays down that no person shall
be denied, by the state, equality before the law or the equal protection of the laws
within its territory. Article 14 strikes at arbitrariness and unreasonable actions of the
State, which are “antithetical” to the rule of equality45.
5. Arbitrary action is described as one that is irrational and not based on sound reason or
as one that is unreasonable46. Wherever we find arbitrariness or unreasonableness
there is a denial of rule of law47. Rule of law requires that no person shall be subjected
to harsh, uncivilized or discriminatory treatment even when the object is the securing
of paramount exigencies of law and order48.
6. The Petitioner submits that the nature of the provision of S 377 and its purpose is to
criminalize private conduct of consenting adults, which causes no harm to anyone
else. It has no other purpose than to criminalize conduct which fails to conform to the
moral or religious views of a section of society. The discrimination severely affects
the rights and interests of homosexuals and deeply impairs their dignity.
7. S 377 creates an arbitrary and unreasonable classification between penile-vaginal and
penile-non-vaginal sexual acts in the name of procreative sex and non-procreative sex
and hence violative of Article 14's guarantee of equal protection before and under the
law. It is submitted that for upholding the classification under Article 14 twin test
must be satisfied, (a) every classification must be founded on intelligible differentia
(b) such classification or differentia must have a relation or nexus to the object sought
to be achieved thereby49.
43
Mihir vs. State of Orissa 1992 CriLJ 488
44
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111
45
Bachan Singh, Sher Singh And Anr. v. State Of Punjab And Ors, AIR 1982 SC 1325
46
Om Kumar v. Union Of India, AIR 2000 SC 3689
47
State of Karnataka v. State of Tamil Nadu and Ors, Civil Appeal No. 2453 of 2007 decided on December 9,
2016
48
Rubinder Singh v.Union of India, AIR 1983 SC 65
49
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538
18
8. a) Classification must be founded on an intelligible differentia: Intelligible Differentia
means a factor that distinguishes a class from another, which is capable of being
understood. It is submitted that S 377 IPC creates classification between persons
indulged in procreative and non-procreative sexual acts, which are unintelligible as it
creates a class of vulnerable people continually victimized and directly affected by the
provision.
9. In Romer v. Evans50 the US Supreme Court concluded that the provision which
named as a solitary class persons who were homosexuals, lesbians, or bisexual either
by "orientation, conduct, practices or relationships" and deprived them of protection
under the state antidiscrimination laws was "born of animosity towards the class of
persons affected" and further that it had no rational relation to a legitimate
governmental purpose.
10. The Petitioner humbly submits that the classification enabled by the Act is based upon
no reasonable ground since it creates a class for homosexuals merely on the
differentiation of sex, which is not capable of being understood. Such class legislation
is hostile, discriminatory and contra of Article 14. By criminalizing sexual acts and
assisted procreation engaged in by homosexual men, they are denied this fundamental
human experience while the same is allowed to heterosexuals.
11. b) Classification or differentia must have reasonable nexus to the object sought to be
achieved: In considering reasonableness from the point of view of Article 14, the
Court has also to consider the objective for such classification. If the objective be
illogical, unfair and unjust, necessarily the classification will have to be held as
unreasonable51.
12. The petitioner humbly submits that the objective of penalizing unnatural sex under S
377 has no rational nexus to the classification created between procreative and non-
procreative sexual acts. As held in Anuj Garg v. Hotel Association of India52, if a law
discriminates on any of the prohibited grounds, it needs to be tested not merely
against "reasonableness" under Article 14 but be subject to "strict scrutiny". The
impugned provision in S 377 criminalizes the acts of homosexuals. It
disproportionately impacts them solely on the basis of their sexual orientation. The
50
517 U.S. 620 (1996)
51
Deepak Sibal v. Punjab University, AIR1989 SC 903
52
AIR 2008 SC 663
19
provision runs counter to the constitutional values and the notion of human dignity,
which is considered to be the cornerstone of our Constitution.
13. In this matter, the Intelligible Differentia applied by the Government restrains
homosexuals and heterosexuals from having non-procreative sex and has no nexus
with the object sought to protect the public health and public morality. S 377 suffers
from the vice of unreasonable classification and is arbitrary in the way they unfairly
target the homosexuals or gay community. They are only stereotypical, outdated and
have no historical or logical rationale rendering it unreasonable and arbitrary.
14. Further, S 377 is vague and does not clearly define its prohibitions. Such vagueness
leads to arbitrary application of S 377 against sexuality minorities. Hence, S 377
should be held void for its vagueness since its prohibitions are not clearly defined.
The rationale for this is that the provisions enacted should be clear so that persons
affected know the true intention53.
15. S 377 punishes “carnal intercourse against the order of nature54.” However, the
expression is not defined. Starting from excluding oral sex55, S 377 was later held to
cover penile non-vaginal sex and oral sex56, mutual masturbation57, penetration into
artificial orifices like thighs58, amongst others59 by judicial interpretation. The tests to
determine acts covered under S 377 also broadened, beginning from non-procreative
test to imitative test60 to the sexual perversity test61. In effect, there was no clarity on
which sexual acts are prohibited under the law.
16. Further, the Supreme Court has held that where a law does not offer a clear
construction and the persons applying it are in a boundless sea of uncertainties and the
law prima facie takes away a guaranteed freedom, the law must be held to offend the
Constitution62.
17. The purpose of Article 14’s equal protection clause is to offer redress to vulnerable
groups assailed by discriminatory practices. S 377’s prohibition of non-procreative
sexual acts criminalizes consensual heterosexual and homosexual sexual relations and
53
Kartar Singh v. State of Punjab (1994) 3 SCC 569
54
Khanu vs. Emperor 1925 Sind 286
55
Government vs. Bapoji Bhatt 1884 (7) Mysore LR 280
56
Supra Note (Khanu vs. Emperor 1925 Sind 286)
57
Brother John Antony vs State 1992 CrLJ 1352
58
State of Kerala vs. K Govindan (1969) CriLJ 818
59
Khandu vs. Emperor AIR 1934 Lahore 261, p 262
60
Lohana Vasantlal and Others vs. The State AIR 1968 Gujarat 252,
61
Fazal Rab Choudhary vs. State of Bihar AIR 1983 (SC) 323
62
K. A. Abbas v. Union of India, AIR 1971 SC 481
20
is propelled by a prejudicial and irrational notion of sex. And vulnerable minorities
require protection from prejudice that can only be done by judicial decision, in the
absence of any special legislative work63.
D. SECTION 377 VIOLATIVE OF ARTICLE 15:
18. S 377 violates Article 15 (1) of the Indian Constitution, as the term “sex" cannot be
limited just to “gender" since sexual orientation is a ground analogous to sex. It is not
an essential condition that the law expressly makes the prohibited ground for the basis
of classification. The Courts are always had to interpret any law by way of 'schematic
and teleological' method of interpretation64. Thus Article 15 does not permit
discrimination on the basis of sexual orientation.
19. It is an established position of law that if the effect of a State action is to infringe a
fundamental right and that effect is brought about by a distinction based on a
prohibited ground (e.g. sex, race, etc.); it would constitute discrimination on the
prohibited ground, however laudable the object of the State action may be65. In the
present case, the effect of S 377 is that it disproportionately impacts homosexuals on
the basis of their sexual orientation. Hence, S 377 needs to be held ultra vires, as it is
discriminatory on a prohibited ground66 that violates Article 15.
E. SECTION 377 VIOLATIVE OF ARTICLE 19:
20. Criminalization prevents self-expression and interferes with the exchange of

information on sexuality. Prohibition of homosexuality through S 377 have violated
the basic freedom under Article 19 (1) (a) (b) (c) (d) have been violated for example,
a person’s potential to make a statement or express about his sexual orientation or
engaging in consensual homosexual activity is confined. Also, the freedoms of
assembly, association and movement of MSM under Articles 19 (1) (b) – (d) of the
Constitution of India are violated by S 377.
63
Vishaka v. State of Rajasthan, AIR 1997 SC 3011
64
Fuzlunbi v. K. Khader Vali, AIR 1980 SC 1730
65
State of Bombay v. Bombay Education Society, 1955 SCR 568
66
Punjab Province v. Daulat SinghAIR 1946 PC 66
21
21. The compelling interest shown by the State in terms of protection of public health and
public morality was rejected by the High Court67. No compelling State interest exists
in intruding into the intimate private zone of consenting adults. This Hon’ble Court68
has erred in failing to consider the High Court’s holding on constitutional morality, as
opposed to public morality, wherein the High Court held that ‘the Constitution of
India recognizes, protects and celebrates diversity. To stigmatize or to criminalize
homosexuals only on account of their sexual orientation would be against the
constitutional morality’.
F. SECTION 377 VIOLATIVE OF ARTICLE 21:
22. Article 21, conforms on every person the fundamental right to life and person liberty,
which has become an inexhaustible source for many other lives69. These rights are as
much available to citizen as to foreigner70. Homosexual people are also included
under article 21 as they are also human beings.
23. The Supreme Court in the case of Kharak Singh v. State of Uttar Pradesh71 held that
“right to life is most fundamental of all. The word life in the article 21 does not
confine itself mere animal existence, but the word life includes wider meaning than
mere an animal existence in the society. The inhabitation against its deprivation
extended to all those limbs and faculties by life is enjoyed. The provision also equally
prohibits the mutilation of the body by amputating off any part of the body, or any
other organ through which the soul communicates with outer world. And sexual
orientation not being outer part of the body but if a person deprived of being having
sexual orientation this also amount to mutilation of the body.”
24. In Bandhua Mukti Morcha V. Union of India72 the Hon’ble court held: “There are
minimum human requirements which exist in order to enable a person to live with
human dignity, and no state has right to take away action which will deprive a person
of the enjoyment of this basic essential”. The three basic essentials of a person’s life
can be named as follows:
67
Naz Foundation v. Government of NCT, 160 (2009) D.L.T. 277
68
Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1
69
Bhagvati, J. in Maneka Gandhi v. Union of India, AIR 1978 SC 597, pp. 620
70
National Human Right Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742
71
AIR 1963 SC 1295
72
AIR 1984 SC 802 pp. 811
22
25. Right to Privacy: The privacy is that “area of a man’s life which in any given
circumstances a reasonable man with an understanding of the legitimate needs of the
community would think it wrong to invade”. Justice Subba Rao, speaking for minority
in Kharak Singh73, held that right to privacy though not expressly declared in our
constitution, is an essential ingredient of the personal liberty.
26. In paragraph 126 of the Justice K. S. Puttaswamy (Retd.) & Anr. Vs. Union of India &
Ors.74, it is stated that ‘Sexual orientation is an essential attribute of privacy.
Discrimination against an individual on the basis of sexual orientation is deeply
offensive to the dignity and self-worth of the individual. Equality demands that the
sexual orientation of each individual in society must be protected on an even
platform. The right to privacy and the protection of sexual orientation lie at the core
of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution’.
27. Paragraph 12775 states ‘the view in Koushal that the High Court had erroneously
relied upon international precedents “in its anxiety to protect the so-called rights of
LGBT person’s is similarly, in our view, unsustainable. The rights of the lesbian, gay,
bisexual and transgender population cannot be construed to be “so-called rights”.
Their rights are not “so-called” but are real rights founded on sound constitutional
doctrine. They inhere in the right to life. They dwell in privacy and dignity. They
constitute the essence of liberty and freedom. Sexual orientation is an essential
component of identity. Equal protection demands protection of the identity of every
individual without discrimination’.
28. Section T, paragraph 3(F)76 held that ‘Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage, procreation, the home and
sexual orientation’. Justice Kaul reiterated the same in paragraph 7877 as ‘The privacy
of the home must protect the family, marriage, procreation and sexual orientation
which are all important aspects of dignity’.
29. It is submitted that sexual intimacies between individuals, whether homosexual or
heterosexual, fall within the protected zone of privacy. As far as this matter is
concerned, the impugned section clearly violates the right to privacy guaranteed by
73
Supra Note 31
74
(2017) 10 SCC 1 [page 122]
75
[Ibid, page 124]
76
[Ibid, page 263]
77
[Ibid, page 73]
23
the Constitution as it peeps into the houses of people without their consent and still
punishes them for their private matters.
30. Human Dignity: The case law also recognizes that the right to privacy is derived
from, and intimately related to, the right of each person to dignity. In Gobind v. State
of Madhya Pradesh78 the honorable Supreme Court has held: “Privacy-dignity claims
deserve to be examined with care and to be denied only when an important
countervailing interest is shown to be superior”.
31. Paragraph 16979 states ‘the family, marriage, procreation and sexual orientation are
all integral to the dignity of the individual. Above all, the privacy of the individual
recognizes an inviolable right to determine how freedom shall be exercised’.
32. The Supreme Court80 has held that “every act that offends against or impairs human
dignity would constitute deprivation pro-tanto of this right to live and it would have to
be in accordance with reasonable, fair and just procedure established by law which
stands the test of other fundamental rights.”
33. In this matter, section 377 of IPC affects dignity of a man as it exposes a person of his
sexual orientation and also punishes him and sends him to prison, which violates his
right to live a dignified life.
34. Right to Health: These gay populations are mostly reluctant to reveal same sex
behavior due to the fear of law enforcement agencies, keeping a large section invisible
and unreachable and pushing the infection underground, making it difficult for Health
Ministry to access them.
35. As said in affidavit filed by NACO in NAZ Foundation v. Union of India which is a
sub-judice matter, that “…….the enforcement of section 377 of IPC can adversely
contribute to pushing the infection underground, make risky sexual practices go
unnoticed and unaddressed. The fear of harassment by law enforcement agencies
leads to sex being hurried, leaving partners without the option to consider or
negotiate safer sex practices. This constantly inhibits/impedes interventions under the
National AIDS Control Programme aimed at preventing spread of HIV/AIDS by
promoting safe sexual practices……..”81 The contention of NACO was supported by
the Ministry of Health and Family Welfare in the affidavit on behalf of the Union of
78
(1975) 2 SCC 148, at page 156, para 22
79
Justice K. S. Puttaswamy (Retd.) & Anr. Vs. Union Of India & Ors. (2017) 10 SCC 1 page 244
80
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, at page 619, para 8
81
Affidavit by M.L.SONI, Under Secretary to the GoI, NACO, MOHFW
24
India, dated 17.06.2006 and a note submitted by MOHFW dated nil titled ‘Concerns
of Ministry of Health
36. Thus, because of the existence of S 377, HIV is spreading too much and it can be out
of control if necessary steps are not taken within few months. Spreading of HIV
makes life of every people miserable and threatened. Hence, the impugned section
should be repealed for the betterment of health of the people.
37. Further, S 377 fails the test of substantive due process under Article 21 because it is a
settled position in law that substantive due process, i.e., whether the substantive law
itself is just, fair and reasonable, has become the standard in examining the validity of
State action that infringes upon the realm of personal liberty under Article 2182.
G. 172nd LAW COMMISSION REPORT:
38. Additionally, in the 172nd report, the Law Commission of India, focused on the need
to review the sexual offences laws and recommended deletion of Section 377. The
report states: 3.6 Deletion of Section 377: In the light of the change effected by us in
Section 375, we are of the opinion that Section 377 deserves to be deleted. After the
changes effected by us in the preceding provisions, the only content left in Section 377
is having voluntarily carnal intercourse with any animal. We may leave such persons
to their just deserts83.
H. MINISCULE POPULATION ARGUMENT:
39. The Hon’ble Court has incorrectly stated that the LGBT as miniscule fraction of the
country’s population cannot be made a basis for making S 377 ultra vires of Article
14, 15 and 21 in the Suresh Kumar Koushal Judgment84. Even if a law adversely
affects one person’s fundamental rights, such a law is liable to be struck down. The
guarantee of constitutional rights does not depend upon their exercise being favorably
regarded by majoritarian opinion85. Thus, the test of popular acceptance does not
furnish a valid basis to disregard rights, which are conferred with the sanctity of
Constitutional protection.
82
Smt. Selvi v. State of Karnataka (2010) 7 SCC 263
83 nd
Annexure: 172 Law Commission Report extracts.
84
Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1
85
Ashoka Kumar Thakur vs. Union of India & Ors (2008) 6 SCC 1
25
I. POWER OF JUDICIAL REVIEW:
40. Non-amendment of law by the Parliament, especially a pre-Constitutional law, is no

limitation on the power of judicial review. It is the bounden duty of this Hon’ble
Court, as the protector and guarantor of fundamental rights of people, to strike down
any law that violates the fundamental rights. The Parliament is not bound to repeal an
unconstitutional law, as evident in Mithu v. State of Punjab86, wherein this Hon’ble
Court had struck down imposition of mandatory death penalty under Section 303, IPC
as unconstitutional but the Parliament did not repeal the same. The Supreme Court
thus, can’t abdicate its constitutional duty of protecting the fundamental rights of
individuals.
J. SECTION 377 HAS BECOME IRRELEVANT WITH PASSAGE OF TIME:
41. S 377 enacted in 1860, prohibiting non-procreative sex, has become completely out-
moded and irrelevant in the present times. The Hon’ble Court has erred in not
applying the test of passage of time to S 377 as laid down in John Vallamattom and
Anr. v. Union of India87. In Satyawati Sharma v. Union of India88, wherein it held that
“legislation which may be quite reasonable and rationale at the time of its enactment
may with the lapse of time and/or due to change of circumstances become arbitrary,
unreasonable and violative of the doctrine of equality and even if the validity of such
legislation may have been upheld at a given point of time, the Court may, in
subsequent litigation, strike down the same if it is found that the rationale of
classification has become non-existent”.
86
(1983) 2 SCC 277
87
AIR (2003) SC 2902
88
(2008) 5 SCC 287
26
K. CONCLUSION:
42. Owing to the pervasive meaning of S 377 both in the courts and through its
enforcement, the above-mentioned contentions have tried to illustrate, the benefits of
decriminalization will contribute directly to the very dignity of the homosexual
person, as a full human being. The Indian courts need to recognize that they cannot
permit the state to continue to demean the existence of people with same sex desires
in this country. The courts need to acknowledge that by decriminalizing S 377 they
will not permit a mere sexual activity, but decriminalize the lives of actual citizens
who are connected to the sexual acts in that section. It cannot be forgotten that
discrimination is the antithesis of equality and that it is the recognition of equality,
which will foster the dignity of every individual. Upholding S 377 will deny basic
human rights to sexual minorities in the country.
27
III. WHETHER HOMOSEXUALS COULD BE CONSIDERED AS THIRD
GENDER AND THUS CAN HOMOSEXUAL ADULTERY BE
PENALIZED
L. INTRODUCTION:
1. This Writ Petition is filed challenging the constitutional validity of Section 497 of IPC
read with Section 198 (2) of CrPC. Section 497 of the IPC is unconstitutional on the
ground that it discriminates against various genders and violates Article 14, 15 and 21
of the Constitution of India. When the sexual intercourse takes place with the consent
of both the parties, punishment of only men under adultery and exempting women
does not hold a valid ground in the light of changing societal conditions. The said
discrimination is against the true scope and nature of Article 14 as highlighted in
89 90
Maneka Gandhi v. Union of India, R.D. Shetty v. Airport Authority, and E.P
Royappa v. State Of Tamil Nadu,91.
2. A part of section 497 of the IPC cannot be interpreted as a beneficial provision under
Article 15(3) as the exemption provided for women under Article 15(3) does not fall
within the scope of the Article which is explained in Thota Sesharathamma and Anr
v. Thota Manikyamma by Lrs. and Others, 92by the Hon’ble Supreme Court.
3. The section does not speak anything pertaining to the third gender and provisions
pertaining to them are unclear creating a confusion while transgender are legally
considered as a third gender but there is no provision of inclusion of gays, lesbians,
bisexuals in the same.
4. This provision was challenged before this Hon’ble Court on three occasions, firstly in
Yusuf Abdul Aziz v. State of Bombay and Another93secondly in Sowmithri Vishnu v.
Union of India94 and finally, in V. Revathi v. Union of India95 and also However, in
view of the emerging jurisprudence on Articles 14, 15 and 21 of the Constitution and
the changed social conditions, this Writ Petition is filed seeking reconsideration and a
89
(1978) 2 SCR 621
90
(1979) 3 SCR 1014
91
1974(4) SCC 3
92
(1991) 4 SCC 312
93
AIR 1954 SC 321
94
AIR 1985 SC 1618
95
(1988) 2 (SCC) 72
28
direction to declare Section 497 of the IPC and Section 198(2) CrPC as
unconstitutional.
M. EXPLANATION TO SECTION 497:
5. According to the section 497 of I.P.C. any married or unmarried man having sex with
married women will be punished for the act of adultery while the women only on the
mere fact that she is a woman will not be charged for any offence. The reason for this
is that marriage is a sacrament bond and whoever comes in between it should be
punished. It does not penalize the sexual intercourse of a married man with an
unmarried woman or a widow or even a married woman when her husband consents
to it. In case the offence of adultery is committed, the husband cannot prosecute his
unfaithful wife but can only prosecute her adulterer. However, since the offence of
adultery can be committed by a man with a married woman only, the wife of the man
having sexual intercourse with other unmarried women cannot prosecute either her
husband or his adulteress. The offence of adultery therefore is an offence committed
against the husband of the wife and not against the wife.
6. The particular section suggest women as the property of the husband till date and
thus denying legal solutions to the women in cases of men offenders as in if the
husband commits adultery, only the husband of the women with whom adultery has
been done has the power to approach for legal solutions, thus denying any legal
solution to the wife of that male offender. The provision conceives a marriage
between women and a man as a master servant relationship. Therefore, if the consent
of the husband as the master is taken, the act no longer becomes the offence of
adultery. Such a treatment was also condemned by this Hon’ble Court in Charu
Khurana and Ors v. Union of India and Ors.96 Thus no legal remedy is provided to
the women.
96
2015(1) SCC 192
29
N. CHRONOLOGY OF EVENTS:
7. The particular section is as old as 1860 and outdated and the laws of every country
should be flexible to adapt to the changing conditions. The Malimath report 2003 and
the 42ndlaw commission report itself suggests to amend the particular section in the
light of various recent judgments and the changing environment of the world.
8. The particular section under scrutiny was instituted by the second law commission
after the constitution of Indian Penal Code due to the conditions of women and
exploitation of them at that time. The condition of the women has changed drastically.
The government has started various initiatives for improvement in the gender equality
which shows various schemes started for the benefit of women of every age group.
O. ARTICLE 14 AND 15 OF THE CONSTITUTION ARE VIOLATED:
9. Section 497 of the Indian penal code and section 198(1) read with section 198(2) of
the criminal procedure code go hand in hand and constitute a legislative packet to deal
with the offence committed by an outsider to the matrimonial unit who invades the
peace and privacy of the matrimonial unit and poisons the relationship between the
two partners constituting the matrimonial unit97. But the said provision acts as a fetter
on the wife in prosecuting her adulterer husband as an unmarried woman can also be
an outsider for the matrimonial home making the provision as unconstitutional on the
ground of obnoxious discrimination.
10. The government by this impugned section is favoring class legislation which is
violative of Article 14.98The fundamental principle is that Article 14
forbids class legislation but permits reasonable classification for the purpose
of legislation which classification must satisfy the twin tests of classification being
founded on an intelligible differentia which distinguishes persons or things that are
grouped together from those that are left out of the group and that differentia must
have a rational nexus to the object sought to be achieved by the statute in question.99
11. In the matter at hand, both the conditions for reasonable classification have not been
fulfilled. Firstly, exempting women from criminal prosecution for the offence of
adultery does not fulfill the above test. Married women are not a special class for the
97
V. Revathi v. Union of India and Others, 1988 SCC 2 72
98
Rule of Law by Prof. Dicey
99
D.S. Nakara and others v. Union of India, 1983 AIR 130
30
purpose of prosecution for adultery. They are not in any way situated differently than
men. Secondly, there is no purpose sought to be achieved by the legislation having a
rational nexus with this exemption.
12. Section 497 of IPC and Section 198(2) of CrPC plainly fail to meet this test of
equality. The implication that men are arbitrarily punished and women are not for
committing the same act is unjust, illegal and unconstitutional.
13. Section 497 IPC cannot be interpreted as a beneficial provision under Article 15(3) of
the Constitution of India. Article 15(3) permits affirmative action in favour of women.
This provision is not meant to exempt married women from the liability of
punishment in criminal offences. When men and women are on equal footing,
discrimination against a particular sex would offend Articles 14 and 15 of the
Constitution of India. That has never been the intention of the Constitutional makers
to bring in criminal exemption under the purview of Article 15 (3) of the
constitution.100The ratio clearly suggests a clear and distinct difference between
exemption from criminal prosecution and protection of women through affirmative
action.
14. The same amounts to institutionalized discrimination which was repelled by this
Hon’ble Court in Charu Khurana and Ors v. Union of India and Ors.101. The said
provision also does not pass the test of reasonable classification as enunciated in State
of W.B. v. Anwar Ali Sarkar, AIR102. The said provision is also hit by the ratio laid
down in Justice K.S Puttaswamy (Retd.) v. Union of India and Ors, since sexual
privacy is an integral part of ‘right to privacy.’ Section 198 (2) of CrPC is also
violative of Article 14, 15 and 21 of Constitution of India since it excludes women
from prosecuting anyone engaging in adultery. Also no amendment was made in
respect of third gender after the NALSA v. Union of India case to make Section 497
gender neutral.103
100
ThotaSesharathamma and Anr v. ThotaManikyamma (Dead) by Lrs. and Others, (1991) 4 SCC 312
101
2015(1) SCC 192
102
1952 SC 75
103
(2014) 5 SCC 438
31
P. ARTICLE 21 OF THE CONSTITUTION HAS BEEN VIOLATED:
15. Section 497 of the IPC is unconstitutional for the further reason that the right to
engage in sexual intercourse is an intrinsic part of right to life under Article 21 of
Constitution of India. The pertaining case reiterated various foreign judgments104
which acted as a foundation for privacy to be considered as a fundamental right.
There is no reason to criminalize consensual sexual intercourse between two adults.
Therefore, for this reason as well, the above said provisions are only liable to be
struck down as unconstitutional.
16. Since the international laws want the decriminalization of adultery but according to
the social fabric of India, the petitioner does not want the striking off the entire
section as a whole but only wants it to be made gender neutral.
Q. CHRONOLOGY OF INDIAN CASES ON ADULTERY:
17. The advocacy for gender neutrality of the concept of adultery is not a new case but is
being followed from a long time and that particular section is violative of fundamental
rights of men, women and third gender. Various cases over a long time have been
adjudged by the Supreme Court of India. Though every time it was against but that
was a time when the particular law was needed but as the environment is changing so
should the law which has to adapt to the changing conditions.
18. In the first the contention raised by the appellant that the particular section will not
come within the ambit of protection clause as Article 15 clause (3) should be confined
to provisions which are beneficial to women and cannot be used to give them a
license to commit and abet crimes.105 However the Supreme Court dismissed the
appeal stating that Article 14 is a general clause and that Constitution itself provides
for special provision for women and children. It was contended every time the
particular issue was raised that the clause is only for the protection of the women but
in reality it’s a myth as contended in 1985 in Sowmithri Vishnu v. Union of India106
and also V. Revathi v. Union of India107 where the discriminatory nature of the
provision was raised again and also how it affected the women. It unjustifiably denies
to women the right which is given to men. This argument rests on the following three
104
Griswold v. Connecticut, 381 U.S. 479 (1965); Bowers v. Hardwick 106 S. Ct 2841
105
Yusuf Abdul Aziz v State of Bombay 53 Bom LR 736
106
AIR 1985 SC 1618
107
1988 SCC 2 72
32
grounds: (1) Section 497 confers upon the husband the right to prosecute the adulterer
but, it does not confer any right upon the wife to prosecute the woman with whom her
husband has committed adultery; (2) Section 497 does not confer any right on the
wife to prosecute the husband who has committed adultery with another woman; and,
(3) Section 497 does not take in cases where the husband has sexual relations with an
unmarried woman, with the result that husbands have, as it were, a free license under
the law to have extramarital relationship with unmarried women.
19. Moreover the reasoning provided in Sowmithri Vishnu v. Union of India108 is illogical.
Exempting an entire class from the purview of criminal penalty is not analogous to
providing for a particular punishment for an offence. When an entire class of the
citizens is exempted from being punished, such an exemption should rest on sound
reasons supported by Constitutional principles. The presumption that only a man can
be a seducer is highly incomprehensible. There is no scientific data or material to
support this statement. In the current social situation, the said observation is
irrelevant. It also goes against the spirit of the judgment in Charu Khurana and Ors v.
Union of India and Ors.109 In the light of the decision of this Hon’ble Court in
National Legal Services Authority v. Union of India110 and the drastic change in the
social situation, the impugned provisions need reconsideration in terms of their
constitutional validity.
20. The recent petition is instituted contending the particular issue being violative of the
Constitution of India, thus clearly praying to overrule the previous judgments of Yusuf
Abdul Aziz v. State of Bombay111 and V. Revathi v. Union of India112. The case
pertaining to this issue is still pending in the writ petition of Joseph Shine v. Union of
India113 and the judges have stated a view in favour of the petitioner
21. It is submitted that section 497 of IPC and 198(2) of CrPC makes it clear that only
man can be penalized for commission of offence of adultery which is vulnerable to
the constitutional challenge under Article 14, 15 and 21 of the Constitution of India.
The particular section should be gender neutral as there is no rational reason to
penalize only a single participant to crime when the act was committed by consensus
108
Sowmithri Vishnu v Union of India AIR 1985 SC 1618
109
2015(1) SCC 192
110
(2014) 5 SCC 438
111
53 Bom LR 736
112
1988 SCC 2 72
113
WRIT PETITION (CRL.) NO. 194 OF 2017
33
of both of them. It has been repeatedly held that persons situated similarly cannot be
subjected to discriminatory or dissimilar treatment.114
R. HOMOSEXUALS SHOULD BE MADE THE THIRD GENDER:
22. As it is proved above that sexual orientation which contains lesbian, gay, bisexual,
transgender are as a whole part of the umbrella term which is sex and it is proved that
if section 377 is decriminalized then acts within its ambit would not constitute an
unnatural offence. Thereby lesbians, gays, bisexuals cannot be excluded as part of
third gender.
23. Moreover LGBT i.e. Lesbian, Gay, Bisexual, Transgender pertains to gender identity
and sexual orientation which is genetic and does not depend on the person and law
does not permit punishment for people who are born like that. Homosexuals are born,
not made as can be proved by recent study. Moreover the delisting of homosexuality
as abnormal behavior by the American Psychological Association in 1973 encouraged
psychologists to examine the potential roots of sexuality. One of these studies was
done by Simon Levay in 1991 proving that being a homosexual is not a disease to be
get infected by watching or talking to homosexuals but people are born that way as
the neurons in the brain of homosexuals are much smaller which were a cause behind
their homosexuality.
24. The recent judgment of NALSA v. Union of India115 has made Transgender as a third
gender. By recognizing Transgenders as third gender, the Court is not only upholding
the rule of law but also advancing justice to the class, so far deprived of their
legitimate natural and constitutional rights. It is, therefore, the only just solution
which ensures justice not only to Transgenders but also justice to the society as well.
Social justice does not mean equality before law in papers but to translate the spirit of
the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive
Principles of State Policy into action, whose arms are long enough to bring within its
reach and embrace this right of recognition to Transgenders which legitimately
belongs to them.
114
Air India v. NergeshMeerza and Others, 1982 SCR 1 438
115
(2014) 5 SCC 438
34
25. Since the present petition was based only on the rights of transgender, the court did
not went deep in the wider meaning of transgender but clarified that the term
“transgender” is used in a wider sense, in the present age. Even gays, lesbians,
bisexuals are included by the descriptor “transgender”. Etymologically, the term
“transgender” is derived from two words, namely, “trans” and “gender”. Former is a
Latin word which means “across” or “beyond”. The grammatical meaning of
“transgender”, therefore, is across or beyond gender. This has come to be known as an
umbrella term which includes gay men, lesbians, bisexuals, and cross-dressers within
its scope.
26. Not only this but international organizations are also advocating on the pretext of
inclusion of homosexuals as a third gender and preventing discrimination solely on
the basis of sexual orientation. According to Yogyakarta principles, discrimination on
the basis of sexual orientation or gender identity includes any distinction, exclusion,
restriction or preference based on sexual orientation or gender identity which has the
purpose or effect of nullifying or impairing equality before the law or the equal
protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of
all human rights and fundamental freedoms. Discrimination based on sexual
orientation or gender identity may be, and commonly is, compounded by
discrimination on other grounds including gender, race, age, religion, disability,
health and economic status. This proves the need of the hour to include the LGBT
community as a whole to the third gender so as to prevent discrimination.
27. Sexual orientation includes transgender and gender-variant people with heavy sexual
orientation and their sexual orientation may or may not change during or
after gender transmission, which also includes, homosexuals, bisexuals,
heterosexuals, asexual, etc.116. In this particular scenario if transgender are included in
sexual orientation then homosexuals should also be included a part of third gender.
28. Thus the petitioner humbly submits that this gender should also come within the
ambit of adultery as every section of the code should be gender neutral as proved
above.
116
National Legal Services Authority v. Union of India, 2014 AIR SC 2285
35
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare that:
1. This writ petition is maintainable under article 32 of Constitution of India
2. Section 377 is unconstitutional and ultra vires.
3. Section 497 is unconstitutional and homosexual adultery should be a part of Adultery.
And pass any such order, writ or direction as the Hon’ble Court deems fit and proper, for this
the Appellants shall duty bound pray.
Counsel for Petitioner
36

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GRAND INTRA MOOT COURT, 2018

TEAM CODE: P-21

GRAND INTRA MOOT COURT COMPETITION, 2018

IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

WRIT PETITION NO. __/2018 & __/2018

(IN THE MATTER OF ARTICLE 14, 15, 19 & 21 OF THE CONSTITUTION OF

IN THE MATTER OF:

Mr. Rux ....................................................................................................PETITIONER NO. 1

Ms. Rupali ................................................................................................PETITIONER NO. 2

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

MEMORIAL ON BEHALF OF THE PETITION

INDEX OF AUTHORITIES................................................................................PAGE NO.3

STATEMENT OF JURISDICTION...................................................................PAGE NO.6

STATEMENT OF FACTS...................................................................................PAGE NO.7

STATEMENT OF ISSUES..................................................................................PAGE NO.8

SUMMARY OF PLEADINGS.............................................................................PAGE NO.9

ARGUMENTS ADVANCED.............................................................................PAGE NO.10

1. CONSTITUTION OF INDIAN, 1950

4. Chemerinsky Erwin, Constitutional Law (2nd edn, Aspen Publishers 2005).

THE PETITIONERS HUMBLY SUBMIT BEFORE THE HON’BLE SUPREME

THE HON’BLE SUPREME COURT OF INDIA HAS JURISDICTION TO TRY

1. Republic of India is a nation established on the principle of democracy and socialism.

1. WHETHER BOTH THE WRIT PETITIONS ARE MAINTAINABLE BEFORE

2. WHETHER SECTION 377 IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF

3. WHETHER HOMOSEXUALS COULD BE CONSIDERED AS THIRD

I. WHETHER THE CURRENT PETITIONS FILED BEFORE THIS

E. INFRINGEMENT OF FUNDAMENTAL RIGHTS:

F. EXHAUSTION OF ALTERNATIVE REMEDY IS NO BAR FOR

B. TIMELINE OF SECTION 377 IN INDIA AND ENGLAND:

E. SECTION 377 VIOLATIVE OF ARTICLE 19:

20. Criminalization prevents self-expression and interferes with the exchange of

G. 172nd LAW COMMISSION REPORT:

H. MINISCULE POPULATION ARGUMENT:

40. Non-amendment of law by the Parliament, especially a pre-Constitutional law, is no

M. EXPLANATION TO SECTION 497:

R. HOMOSEXUALS SHOULD BE MADE THE THIRD GENDER:

Counsel for Petitioner

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WRIT PETITION NO. /2018 & /2018