SHARDA UNIVERSITY 3RD INTRA MOOT COMPETITION - 2014

SHANTARAM

V.

MARIAH and PETER

-PETITIONER-

-RESPONDENT-

MEMORIAL DRAWN AND SUBMITTED ON BEHALF OF THE RESPONDENT

MARIAH and PETER

By:

Dendup Wangmao
Irfan Md. Haji

Shonwang Konyak
Vasu Vibhav Purohit

TABLE OF CONTENTS

INDEX OF AUTHORITIES
LIST OF ABBREVIATIONS
STATEMENT OFJURISDICTION..........................................................................................
STATEMENT OF FACTS..........................................................................................................
ISSUES RAISED
SUMMARY OF ARGUMENTS

INDEX OF AUTHORITIES

 STATUTES REFERRED
1. THE CONSTITUTION OF INDIA
2. INDIAN PENAL CODE, 1860
CASES REFERRED
1. NAZ FOUNDATION (INDIA) TRUST V. GOVERNMENT OF NCT OF DELHI
AND ORS.
2. KHANU VS EMPEROR
3. ATTORNEY GENERAL OF GEORGIA V. HARDWICK

LIST OF ABBREVIATIONS

1.
2.
3.
4.

&And
AIR...All India Reporter
.Section
Honble..Honorable

5. Ors..Others
6. IPC...Indian Penal Code
7. Cr.PcCriminal Procedure Code

STATEMENT OF JURISDICTION

The Respondent submits this memorandum for the petition filed before this Honorable Court. It
sets forth the facts and the laws on which the claims are based. The Parties shall accept any

Judgment of the Court as final and binding upon them and shall execute it in its entirely and in
good faith.

STATEMENT OF FACTS

1. MARIAH and PETER are the founders of an NGO named QRO (Queers Rights
Organization) in city of Shombay, INDUS, a south Asian country of the world.

2. The NGO is working for the upliftment of LGBT people, and its functioning includes
organizing seminars, awareness programmes for LGBT community along with health
care activities, especially for the prevention & treatment of AIDS and other STDs.
(Sexually transmitted Diseases).The NGO has been organizing awareness campaigns for
Queer rights since its establishment in 2009.
3. In early 2014, they decided to organize a nationwide campaign to promote health
awareness against sexually transmitted diseases, including AIDS, and to promote safe sex
among people in general.
4. In order to bring wide publicity for their forthcoming campaign, they tied up with various
social media websites, including (www.Queerchat.com), where many LG BT people were
the members, and frequently socialize by way of online chats, etc.
5. On the decided day, they organized the campaign for awareness & prevention of STDs
including AIDS, and distributed condoms to the attendees. The attendees include, people
from both within and outside Queer community.
6. A Local religious leader, SHANTARAM who attended the campaign, filed a complaint
against the founders of the NGO claiming that they are committing abetment of offence
under section 377 of Indus Penal Code. As a result, many attendees to the function along
with MARIAH and PETER were arrested for the offence of abetment and criminal
conspiracy.
7. In course of arrest, police also received information that many of the attendees have met
on social websites, which has acted as a bridge between the organizers of campaign and
the attendees to the function. This has further resulted in arrest of developers of LGBT
website. (www. Queerchat.com).
8. When the accused were taken to the magistrate for bail, it was refused to all, on the fact
that S.377 of Indus Penal Code is a non-bailable offence.
ISSUES RAISED

THE FOLLOWING ISSUES HAVE BEEN RAISED FOR ADJUDICATION BEFORE THE
HONBLE COURT-

1. WHETHER SHANTARAM HAS A LOCUS- STANDI TO FILE THE COMPAINT?

2. WHETHER ARREST IN THIS CASE IS LEGAL AND CONSTITUTIONAL?
3. WHETHER SECTION 377 OF INDUS PENAL CODE WILL BE APPLICABLE
TO THE ARRESTEES?
4. WHETHER THE CHARGES OF ABETMENT AND CONSPIRACY ARE
LEGALLY JUSTIFIED?
5. WHETHER LIASONING WITH DEVELOPERS OF A QUEER WEBSITE
AMOUNTS TO CRIMINAL CONSPIRACY?
6. WHETHER MAGISTRATE WAS JUSTIFIED IN REJECTING THE BAIL?
7. WHETHER DISCRIMINATION IN ARREST OF DEVELOPERS OF QUEER
WEBSITE ONLY, AMOUNTS TO DISCRIMINATION UNDER ARTICLE 14 & 15
OF THE CONSTITUTION?

8. WHETHER ARREST AMOUNTS TO INFRINGEMENT OF ARTICLE 19 AND 21

OF THE CONSTITUTION?

SUMMARY OF ARGUMENTS

1. WHETHER SHANTARAM HAS A LOCUS- STANDI TO FILE THE COMPAINT?

No, because the main element of Locus Standi is there should be harm.
Locus- standi says that a complaint (writ) can be filed by an effected person. In this case
there was no harm at all because the NGO on a bonafide intention to save the world at
large protecting against the spread of STD (AIDS).
Mere distribution of condom does not harm anyone. It depends on the mentality and
practicability of that particular person how he makes use of that condom.
Instead they created the online website i.e. queerchat.com and uplifted the out casted
people in the society i.e. the LGBT because they as a human being has the right to live
with dignity and liberty.
According to Article 21 of the Constitution of India, every person has the Right to Life
and Personal Liberty.
2. WHETHER ARREST IN THIS CASE IS LEGAL AND CONSTITUTIONAL?
No the arrest of the founders of the NGO Queers Right Organization Mariah and Peter
along with the developers of LGBT website (www.Queerchat.com) was neither legal nor
constitutional.
Under Article 19 it reads as protection of certain rights regarding freedom of speech, etc.(1)All citizens shall have the right-under sub clause (a) freedom of speech and
expression. The founders of the NGOs and the developers of the LGBT website were
organizing a campaign for awareness & prevention of STDs including AIDS, and
distributed condoms to the attendees of the same. The basic aim was to promote safe sex
among people in general.

Under Article 15 it reads as prohibition of discrimination on grounds of religion, race,

caste, sex or palace of birth-(1) The State Shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them. It has been
provided no person shall be discriminated on the above mention grounds. Thus, the arrest
of founders of NGO (Queers Rights Organization) and Developers of website
(www.Queerchat.com) are an indirect discrimination regarding their sexual orientation.

And also according to Section 41 of Criminal Procedure Code, police can arrest a person
against whom a reasonable complaint has been made.
But in this case, the complaint was not reasonable because the NGO was working for the
benefit of society and upliftment of the LGBT community.
And according to the National AID Control Organization (NACO), they can freely
distribute condom in general and there is no question of harming the society in general.

3. WHETHER SECTION 377 OF INDUS PENAL CODE WILL BE APPLICABLE

TO THE ARRESTEES?
Unnatural offences are dealt with under Section 377 of the Indian Penal Code, 1860. The
section reads as follows
Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal shall be punished with imprisonment for life, or with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to
fine.
As far as facts of the case is concern the founders of the NGOs and the developers of the
LGBT website were organizing a campaign for awareness & prevention of STDs
including AIDS, and distributed condoms to the attendees of the same. The basic aim
was to promote safe sex among people in general. Thus, section 377 is not applicable as
the essential requirements to constitute unnatural offence are intention, actus Reus,
mens rea and carnal intercourse against the order of nature.
According to Part III of the Constitution of India, the LGBT as the citizen of India gets
all the fundamental rights like Article 21, the Right to Life and Personal Liberty, unless
and until they commit an unnatural offence under Section 377 of IPC.
Sexual orientation does not mean that they are accused of an unnatural offence. It is in
them by nature or Gods will and their invention.
In the case of NAZ FOUNDATION JUSTICE MUKHO PADHAYA SAID THEY
CANNOT BE HELD LIABLE FOR ABNORMAL ACTS BUT ONLY FOR

UNNATURAL ACTS.
4. WHETHER THE CHARGES OF ABETMENT AND CONSPIRACY ARE
LEGALLY JUSTIFIED?
No the charges of abetment and conspiracy are not legally justified as none of the
attendees committed any act that constituted sec 377 nor any injury to the aforesaid
petitioner, the motive was as far as facts of the case is concern that the founders of the
NGOs and the developers of the LGBT website were organizing a campaign for
awareness and prevention of STDs including AIDS, and distributed condoms to the
attendees of the same. The basic aim was to promote safe sex among people in general.
For, the commitment of criminal abetment and conspiracy, the essential elements is
mensrea whereas in this case, no such intention has been found conversely, they were
acting in bonafide intention and helping the out casted LGBT community.

5. WHETHER LIASONING WITH DEVELOPERS OF A QUEER WEBSITE

AMOUNTS TO CRIMINAL CONSPIRACY?
No liasoning with the developers of the website does not amounts to criminal
conspiracy. As from the facts of the case the NGO decided to organize a nationwide
campaign to promote health awareness against sexually transmitted diseases, including
AIDS, and to promote safe sex among people in general. In order to bring wide publicity
for their forthcoming campaign, they tied up with various social media websites,
including (www.Queerchat.com), where many LGBT people were the members, and
frequently socialize by way of online chats, etc.
Under section 120 A provides the definition of criminal conspiracy- When two or more
persons agree to do, or cause to be done,(1) An illegal act, or
(2) An act which is not illegal by illegal means, such an agreement is designated a

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criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof.
Explanation - It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.
Even though the illegal act is immaterial to constitute criminal conspiracy, Mariah and
peter were wrongfully held as it was not justified.
6. WHETHER MAGISTRATE WAS JUSTIFIED IN REJECTING THE BAIL?
As far as section 377 of Indian penal code says about the unnatural offences which is a
cognizable, non-bailable, non-compoundable and triable by a magistrate of first class.
Mere intention to commit the crime is not enough to convict the accused. The magistrate
is justified in denying the bail application to the accused.
However, in this case regarding the application of section 377 of unnatural offences the
magistrate was not justified as the section mention above is not applicable.

7. WHETHER DISCRIMINATION IN ARREST OF DEVELOPERS OF QUEER

WEBSITE ONLY, AMOUNTS TO DISCRIMINATION UNDER ARTICLE 14 &
15 OF THE CONSTITUTION?
Yes, the arrest of developers of queer website amounts to discrimination under article 14
which is equality before law and article 15 which is prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth as sole motive of the developers of

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the website was to bridge the gap among LGBT community and queer community also
between the organizers of campaign and the attendees to the function. They had no
intention of abetment of unnatural offences as classified under sec 377 of Indian penal
code nor had any motive of criminal conspiracy with the founders of (Queers Rights
Organization).
It has been submitted that Section 377s legislative objective of penalizing unnatural
sexual acts has no rational nexus to the classification created between procreative and
non- procreative sexual acts, and is thus violative of Article 14 of the Constitution of
India.
The Court made it explicit that where an Act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is, therefore,
violative of Article 14.
Sexual orientation is a ground analogous to sex and that discrimination on the basis of
sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the
notion of horizontal application of rights. In other words, it even prohibits discrimination
of one citizen by another in matters of access to public spaces. Therefore, discrimination
on the ground of sexual orientation is impermissible even on the horizontal application
of the right enshrined under Article 15.

8. WHETHER ARREST AMOUNTS TO INFRINGEMENT OF ARTICLE 19 AND

21 OF THE CONSTITUTION?
Yes, the arrest of the founders of NGOs as well as the developers of queer website
amounts to infringement of article 19 which is protection of certain rights regarding
freedom of speech and article 21 which is protection of life and personal liberty as they
were organizing a campaign for awareness & prevention of STDs including AIDS.

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Blackmun, J. in his dissent in Bowers, Attorney General of Georgia v. Hardwick 1, made

it clear that the much - quoted right to be let alone should be seen not simply as a
negative right to occupy a private space free from government intrusion, but as a right to
get on with your life, your personality and make fundamental decisions about your
intimate relations without penalization. The privacy recognizes that we all have a right to
a sphere of private intimacy and autonomy which allows us to establish and nurture
human relationships without interference from the outside community. The way in which
one gives expression to ones sexuality is at the core of this area of private intimacy. If,
in expressing ones sexuality, one acts consensually and without harming the other,
invasion of that precinct will be a breach of privacy2.
The sphere of privacy allows persons to develop human relations without interference
from the outside community or from the State. The exercise of autonomy enables an
individual to attain fulfilment, grow in self-esteem, build relationships of his or her
choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution,
the right to live with dignity and the right of privacy both are recognized as dimensions
of Article 21. Section 377 IPC denies a persons dignity and criminalizes his or her core
identity solely on account of his or her sexuality and thus violates Article 21 of the
Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood
which is implicit in notion of life under Article 21 of the Constitution.
Section 377 however, by criminalizing consensual sexual acts between adults in private 3,
basically penalizes the minority group and has targeted the homosexuals in particular
since the majority considers it to be against the order of nature. Therefore, it is arbitrary
and unreasonable under Article 14.
The expression sex as used in the Article 15 cannot be read restrictive to gender but
1 Protection of life and personal liberty.
2 478 US 186 (1986).
3Acts which does not harm anybody or the public.

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includes sexual orientation4and, thus read, equality on the basis of sexual orientation is
implied in the said fundamental right against discrimination.

PRAYER FOR RELIEF

WHEREFORE

IN THE LIGHT OF ABOVE FACTS STATED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE

RESPONDENTS

PRAYS BEFORE THE

HONBLE COURT

TO BE

GRACIOUSLY PLEASED TO:

ILLEGALITY OF THE ARREST FOR THE NON-APPLICATION OF SECTION 377

OF INDUS PENAL CODE.
DISCRIMINATION OF LGBT COMMUNITY UNDER ARTICLE 15 OF THE
CONSTITUTION OF INDIA IS DECLARED UNCONSTITUTIONAL.
AND

4 An individual has a right to choose his/her sexual orientation, he can decide what
sexual orientation he prefers to be.

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THE COURT

MAY ALSO BE PLEASED TO PASS ANY OTHER ORDER IN THE LIGHT OF JUSTICE,

EQUITY AND GOOD CONSCIENCE.

AND

FOR THIS ACT OF KINDNESS OF YOUR

RESPONDENTS SHALL AS DUTY BOUND EVER PRAY.

All of which is respectfully submitted.

________________________________________________________

Counsels on behalf of Respondents

Date: 3 April, 2014

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LORDSHIP,

THE