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1st LAW GURU NATIONAL MOOT COURT COMPETITION, 2017

BEFORE THE HON’BLE SUPREME COURT OF XERBIA

SPECIAL LEAVE PETITION

S.P.L.NO. /2018

UNDER ARTICLE 136 OF THE CONSTITUTION OF XERBIA

RAJAT ………………...…………….…...………………………..………....…..PETITIONER NO. 1

v.

UNION OF XERBIA.......................................................................................…RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF

XERBIA AND HIS COMPANION JUSTICES OF

THE HON’BLE SUPREME COURT OF XERBIA

MEMORIAL ON BEHALF OF THE PETITIONER


1ST LAW GURU NATIONAL MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................................... II

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

STATEMNT OF JURISDICTION ..................................................................................... IX

LIST OF ABBREVIATIONS ................................................................................................ X

STATEMENTS OF FACTS ................................................................................................ XI

QUESTIONS PRESENTED ............................................................................................... XII

SUMMARY OF ARGUMENTS ....................................................................................... XIII

ARGUMENTS ADVANCED .................................................................................................. 1

I. THAT THE SLP IS MAINTAINABLE. ................................................................................ 1


A. That all the necessary conditions of Special Leave Petition are satisfied. .............. 1
B. That the matter involves substantial question of law. ............................................. 2
C. That the court has power of judicial review over policy decisions. ........................ 2
II. THAT SECTION 377 OF XERBIAN PENAL CODE IS UNCONSTITUTIONAL AS

VIOLATIVE OF PROVISIONS OF THE CONSTITUTION .............................................................. 3

A. That penalising consensual non vaginal sex violates fundamental right of equality
under Article 14. ................................................................................................................ 3
B. That section 377 violates article 15 of the Indian constitution. ............................... 5
C. Whether the Right to Privacy as contemplated under Article 21 is violated by
Section 377 of the IPC. ...................................................................................................... 7
D. Sections 377 violates right to human dignity as evolved under article 21 of the
constitution....................................................................................................................... 10
E. That section 377 violates international legal norms. ............................................. 10
III. THAT THE MATRIMONIAL LAWS ARE UNCONSTITUTIONAL. .................................... 11
A. That right to marriage is the fundamental right of the person and denial of the
same by matrimonial law would infringes the right to equality. ..................................... 11
B. Whether the Act constitutes the violation Article 21 of the constitution .............. 13

PRAYER .......................................................................................................................... XVIII

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INDEX OF AUTHORITIES

INDIAN CASES

A.K. Roy v. Union of India (1982) 1 SCC 271. ........................................................................ 3


Anuj Garg v. Hotel Association of India (2008) 3 SCC 1. ........................................................ 5
Associated Cement Companies Ltd v. P.N. Sharma, (1965) 2 SCR 366 .................................. 1
Azadi Bachao Andolan Delhi Unit v. All India Radio and Others, Order of the CMM, Delhi,
dated 23 October, 1997. ......................................................................................................... 9
Balakrishna v. Ramaswami, AIR 1965 SC 195. ........................................................................ 2
C.C.E v. Standard Motor Products, AIR1989 SC 1298; ............................................................ 1
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 at para 11. ......................................... 10
D.S. Nakara v. Union of India, (1983) 1 SCC 305. ................................................................... 3
Deepak Sibal v. Punjab University (1989) 2 SCC 145. ............................................................. 4
Dhirendra Nadan and Another v. State,Criminal Case Nos.HAA0085 & 86 of 2005 ........... 5
District Registrar and Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 632. .................... 7
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors AIR 1954 SC 520. ......................... 1
E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348. ........................................................ 3
Elezabeth v. Harwan Investment and trading pv.t ltd (1993) SCC Supp (2) 433. ................... 10
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others (1981) 1 SCC
608.......................................................................................................................................... 9
G Sundarajan v. Union of India (2013) 6 SCC 203. ................................................................ 10
General Finance Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343. ............... 2
Gobind v. State of M.P. 1975CriLJ1111. ................................................................................ 14
Harish Chandra Gupta v. State of Uttar Pradesh, AIR 1960 All 650. ....................................... 3
Haryana State Industrial Corpn. v. Cork Mfg. Co., (2007) 8 SCC 359 (SC). ........................... 1
I.R. Coelho (Dead) by LRs v. State of Tamil Nadu &Ors., (2007) 2 SCC 1............................. 2
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214. .............. 2
John Vallamattom v. Union of India (2003) 6 SCC 611 ........................................................... 5
K S Puttaswamy v. UOI, (2014) 6 SCC 433. ............................................................................ 6
K. Thimappa v. SBI, (2001) 2 SCC 259. ................................................................................. 12
K.A. Abbas v. The Union of India and Anr., (1970) 2 SCC 760............................................... 3
K.P. Puttaswamy v. Union Of India (2017) 10 SCC 1 ............................................................ 11
Kartar Singh v. State of Punjab, (1994) 3 SCC 569. ................................................................. 3

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Kathi Raning v. State of Saurashtra, 1952 SCR 435. ................................................................ 5


Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225. ..................................................... 10
Kharak Singh v. State of UP, AIR 1963 SC 1295. ................................................................... 7
Krishnasamy Reddiar Educational Trust v. Member Secretary, National Council for Teacher
Education, A.I.R. 2005 S.C. 2785........................................................................................ 12
Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359........................ 1
Lata Singh v. State of Uttar Pradesh, AIR 2006 SC 2522. ...................................................... 13
Leung T C William Roy v. Minister for Justice, HCAL 160/2004 (2005). ............................... 5
M. Nagraj v. Union of India, (2006) 8 SCC 212. ...................................................................... 5
Maharashtra University of Health Sciences and Ors. v. Satchikitsa Prasarak Mandal and Ors.,
(2010) 3 SCC 786. ............................................................................................................... 10
N Suriyakala v. A Mohan Doss &ors. (2007) 9 SCC 196; ........................................................ 1
NALSA v. Union of India, (2014) 5 SCC 438. ......................................................................... 7
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036. ....................................... 1
National Legal Service Authority v. Union Of India (2014) 5SCC 438. ................................ 10
Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277. .................................... 2
Nihal Singh &Ors v. State Of Punjab, AIR 1965 SC 26. .......................................................... 1
Paschim Bangal Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37. ............................ 9
Pawan Kumar v. State of Haryana (2003)11 SCC 241 (SC) ..................................................... 2
Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526. ....................................................... 9
Pritam Singh v. State, AIR 1950 SC 169. .................................................................................. 1
Public Union for Civ.il Liberties v. Union of India (1997) 3 SCC 433. .................................. 10
Punjab Province v. Daulat Singh, AIR 1946 PC 66. ................................................................. 6
R. Rajgopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632. ........................................................ 7
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha &Ors., (2007) 3 SCC 184. ................................ 2
Rajeshwari v. State of UP AIR 1954 ALL 608. ........................................................................ 6
Ram Krishna Dalmia v. S.R.Tendolkar, A.I.R. 1958 SC 538. ................................................ 12
S. Khushboo v. Kanniamal and Another, (2010) 5 SCC 600. ................................................... 5
Saksham foundation Charitable Society v. UOI, 2014(5) ALJ 496. ....................................... 15
Salil Bali v. Union of India, (2013) 7 SCC 705. ...................................................................... 10
Satyawati Sharma v. Union of India (2008) 5 SCC 287. ........................................................... 5
State of Bombay v. Bombay Education Society, (1955) SCR 568............................................ 6
State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 284. ......................................... 12

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Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1. ......................................... 5


Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1............................................. 5, 6, 8
Surjit Singh v. State of Punjab, (1996) 2 SCC 336. ................................................................... 9
Ugar Sugar Mill v. Delhi Administration, (2001) 3 SCC 635 ................................................... 2
Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165. ................................................. 9
Vishaka v. State of Rajasthan (1997) 6 SCC 241. ................................................................... 10

Statutes

Constitution of India 1950. ........................................................................................................ 2


Section 377 of Xerbian Penal Code. .......................................................................................... 3
HINDU MARRIAGE ACT . .................................................................................................. 11

OTHER AUTHORITIES

Alison Abbott, “Snapshot: But is it Natural?”, NATURE, Vol. 443, 26 October 2006, p. 895.
................................................................................................................................................ 4
A. Lev.an, T.Y. Fedina and S.M. Lewis, “Testing Multiple Hypotheses for the Maintenance
of Male ................................................................................................................................... 4
K.K. Gulia and H.N. Mullick, “Homosexuality: A Dilemma in Discourse”, Indian J Physiol
Pharmacol ............................................................................................................................ 12
Marlene Zuk, “Family Values in Black and White”, NATURE, Vol. 438, 23 February, 2006,
Pg. 917. .................................................................................................................................. 4
Martha Nussbaum, A Right to Marry? Same-sex Marriage and Constitutional Law, Dissent
Magazine (2009). ................................................................................................................. 13
Mary L. Bonauto, Goodridge in Context, 40 Harv. C.R.-C.L. L. Rev. 1 (2005). .................... 13
MoHFW, HIV. Sentinel Surveillance and HIV. Estimation in India 2007 – A Technical Brief
available at ............................................................................................................................. 9
NACO, Annual Report 2010-2011, available at naco.gov.in/documents/annual-reports.......... 9
National AIDS Control Organisation (NACO), Ministry of Health and Family Welfare
(MoHFW), National AIDS Control Programme Phase III[2007-2012] Strategy and
Implementation Plan, November 2006, at pages 104-105 of Compilation – Volume 3........ 8
Reply Affidav.it on behalf of NACO and MoHFW before the Delhi High Court in Naz
foundation case. ..................................................................................................................... 9
Report of the Commission on AIDS in Asia available at
data.unaids.org/pub/report/2008/20080326_report_commission_aids_en.pdf. ..................... 9

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pilation – Volume 4. .................................................................................................................. 9


Thomas B, HIV. Prevention Interventions in Chennai, India: Are Men Who Have Sex with
Men Being Reached?, AIDS Patient Care STDS. 2009 November; 23 (11): 981–986 at
pages 59-60. ........................................................................................................................... 9
UNAIDS, Policy Brief, HIV. and Sex between Men, 2006 at pages 24-27 of Compilation –
Volume 3................................................................................................................................ 9
V.G Hegde, ‘Indian courts and international law’ ................................................................... 10
William H James, “Biological and............................................................................................. 4
World Health Organisation, ICD-10 Classification of Mental and Behavioural Disorders:
Clinical ................................................................................................................................... 4

FOREIGN CASES

Baker v. State, No. 98-032, 1999 V.t. Lexis 406, at * 4 (V.t. Dec. 20, 1999). ........................ 13
Buck v. Bell (1927) 274 US 200. ............................................................................................. 14
Chapin and Charpentier v. France (App. No. 40183/07, 9 June 2016).................................... 13
Halpern v. Canada (2003) 65 OR (3d) 161 (CA)..................................................................... 11
Law v. Canada (1999) 1 SCR 497 (Law). ............................................................................... 15
Law v. Canada (Minister of Employment and Immigration), (1999) 1 S.C.R. 497. ............... 10
Lawrence v. Texas, 539 U.S. 558 (2003). ............................................................................. 4, 5
Leung T C William Roy v. Secretary for Justice, Civ.il Appeal No. 317 of 2005. ................... 7
Loving v. Virginia (1967) ........................................................................................................ 11
Meyer v. Nebraska, (1923) 262 US 390. ................................................................................. 14
Modinos v. Cyprus, (1993) 16 EHHR 186. ............................................................................... 7
Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.). ................................... 14
National Coalition for Gay and Lesbian Equality & Ors. v. Minister of Justice & Ors., (1999)
ZACC 17 ................................................................................................................................ 8
National Coalition for Gay and Lesbian Equality and others v. Minister of Home Affairs
2000 (1) BCLR 39. .......................................................................................................... 9, 10
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 6 BHRC 127 (CC,
1998), 1998 ............................................................................................................................ 8
New York v. Class, 475 US 106 89 L. Ed 2d 81 (car)............................................................... 8
Noise Pollution (V.), In re,(2005) 5 SCC 733. ........................................................................ 10
Norris v. Republic of Ireland (1991) 13 ECHR 186. ................................................................. 9
Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015)............................................................... 11
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Oliari v. Italy (Apps. Nos. 18766/11 and 36030/11, 31 July 2015). ........................................ 13
Olmstead v. United States (1928) 277 US 438. ....................................................................... 14
Planned Parenthood of Southeastern Pa v. Casey (1992) 505 US 833. ................................... 14
President of the Republic of South Africa & Another v. Hugo (1997) (6) BCLR 708 CC. .... 11
R (Wood) v. Commissioner of Police of the Metropolis, (2010) 1 WLR 123(2009) 4 ALL ER
951.......................................................................................................................................... 8
R. (Alconbury Ltd.) v. Environment Secretary, [2001] 2 WLR 1389 ....................................... 2
Romer v. Evans, 517 U.S. 620 (1996). ...................................................................................... 4
Santos, et al., v. Aranzanso, et al., No. L-23828, 16 SCRA 344, February 28, 1966. ............. 13
Toonen v. Australia Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992
(1994). ................................................................................................................................ 5, 6
Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992
(1994). .................................................................................................................................... 3
Union pacific railway v. Batsford, (1891) 141 US 250. .......................................................... 14
US v. Mitchell Miller 425 US 435 48 L Ed 2d 71 (1976). ........................................................ 8
V.riend v. Alberta, (1998) 156 DLR (4th) 385. ....................................................................... 10
Vriend v. Alberta (1998) 1 SCR 493 (Vriend). ....................................................................... 15
Vriend v. Alberta, (1998) 1 S.C.R. 493. .................................................................................... 6
West Virginia State Board of Education v. Barnette, 319 US 624 (1943). ............................... 2

CASES FROM OTHER SUPRANATIONAL COURTS AND INTERNATIONAL

Article 1, Universal Declaration of Human Rights .................................................................. 15


Article 12 of the ICESCR General Comment No. 14 (2000) E/C. ............................................ 9
Article 12, Universal Declaration of Human Rights. ............................................................... 14
Article 17, International Convention on Civil and Political Rights. ........................................ 13
European convention on human rights. ................................................................................... 14
Preamble of United Nations Charter,1945 ............................................................................... 15
United Nations General Assembly Declaration of Commitment on HIV. /AIDS, 2001,
A/Res/S-26/2 at Para 37. ........................................................................................................ 8
Universal Declaration of Human Rights. ................................................................................. 12

ARBITRAL AWARDS ECJ AND DOMESTIC CASES

Article 15. The xerbian constitution 1950. .............................................................................. 12


Constitutional Assembly Debates: Official Reports Vol.V.II: November 4, 1948. .................. 8

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BOOKS

Charles E. Roselli and Fred Stormshak, “The Neurobiology of Sexual Partner Preferences in
Rams”,.................................................................................................................................... 4
D.D. Basu Pg. 4772 Vol 5........................................................................................................ 13
David Feldman, “Human Dignity as a Legal Value – Part I”, (1999) Public Law 682
[Feldman I]........................................................................................................................... 15
Franz B. M. de Waal, “Bonobo Sex and Society”, Sci Am. 1995 Mar; 272(3):82-8. ............... 4
H.M. Seervai, Constitutional Law Of India (4th edn. Vol 1 2010). .......................................... 2
Hubert Cancik, “‘Dignity of Man’ and ‘Persona’ in Stoic Anthropology: SomeRemarks on
Cicero, DeOfficiis 105–107” [Cancik] in David Kretzmer & Eckart Klein (eds), The
Concept of Human Dignity in Human Rights Discourse (The Hague: KluwerLaw
International, 2002) 19–39, p 19 [Kretzmer & Klein] ......................................................... 14
Upendra Baxi, ―Dignity in and with Naz‖, in Law Like Love: Queer Perspectiv.es of Law in
India (Yoda: New Delhi, 2011) ........................................................................................... 10

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STATEMNT OF JURISDICTION

The Petitioner have the honour to submit before the hon’ble supreme court of Xerbia, the
memorandum for the appellant under article 136 (special leave petition) of the constitution of
Xerbia, 1950.

The present memorandum sets forth the facts, contentions and arguments in the present case.

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LIST OF ABBREVIATIONS

& And

§ Section

AIMPLB All India Muslim Personal Law


Board

AIR All India Reporter

Anr. Another

A.P Andhra Pradesh

Govt. Government

ICCPR International Covenant on Civil


and Political Rights

IPC Indian Penal Code

Ltd. Limited

Ors. Others

P. Page

SCC Supreme Court Cases

SC Supreme Court

SLP Special Leave Petition

U.P. Uttar Pradesh

Vol. Volume

v. Versus

W.B. West Bengal

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STATEMENTS OF FACTS

1. Mr. Rajat, is a well-known lawyer and a partner at A&Z Private Partnership firm. He
entered into wedlock with Mrs. Riya in 2017.
Both parties are Hindus and belong to conservative and orthodox families. Their
marriage was solemnised according to recognised Hindu rites and ceremonies. It was
also registered under the matrimonial law of the country. Mr. Rajat and Mrs. Riya are
residing in Coria, in the state of Olicana.

2. Mr. Rajesh is also a partner at A&Z Private Partnership firm. Both Mr. Rajat and Mr.
Rajesh were partners at the firm even before the former’s marriage. Owing to constant
pressure and increased time together, both partners developed mutual attraction and
started cohabiting.
This was in clear violation of the penal provisions of Xerbia.

3. Since the beginning, their marriage was characterised by frequent arguments


regarding cohabitation and other issues. Their arguments even reached the neighbours
who refrained from interfering in their personal matter.This was despite the constant
effort on Mrs. Riya’s part to cohabit but in vain. Finally, 3 months after the marriage,
Mr Rajat decided to abandon his wife and commence a live-in relationship
withMr.Rajesh.

4. Despite the abandonment, Mrs. Riya attempted to initiate communications with Mr.
Rajat who did not respond to any of the same. Finally, Mrs. Riya was left with no
option and she sent a legal notice. The legal notice was ignored and thus Mrs. Riya
filed a petition in the Family Court, Coria under the relevant Matrimonial laws. She
has sought the relief of restitution of conjugal rights.
She contends that the existing relationship between Mr. Rajat and Mr. Rajesh is
unnatural.She has based her contentions on the telephonic conversations and text
messages exchanged between Mr. Rajat and her. Mr. Rajat has further communicated
that while he was pressurised into the marriage, he could not prolong the marriage;
and hence his decision to abandon his wife and live with Mr. Rajesh instead.

5. Pending the above petition, a Writ Petition was filed by Mr. Rajat in the High Court
of Olicana challenging the constitutional validity of both the matrimonial law and
penal law provisions. He contended that both these law provisions force him to
cohabit with a person against his will and prevent him from pursuing an unnatural
relationship. According to Mr. Rajat, this violated the right to life with dignity as
guaranteed under the Constitution. However, the High Court dismissed the petition
holding both the sections of the concerned statues as constitutionally valid.

6. Meanwhile, in another unrelated case,the Hon’ble Supreme Court declared Right to


Privacy as a facet of Right to Life under the Constitution of the country.

7. Aggrieved by the High Court decision and in light of the above declaration by the
Honourable Supreme Court, Mr. Rajat has hence filed a Special Leave Petition before
the Honourable Supreme Court.

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QUESTIONS PRESENTED

I. THAT SLP IS NOT MAINTAINABLE IN THE INSTANT MATTER

II. THAT SECTION 377 IS CONSTITUTIONAL AS IT DOES NOT VIOLATE THE PROVISIONS OF THE

CONSTITUTION.

III. WHETHER THE MATRIMONIAL LAWS OF STATE OF XERBIA ARE UNCONSTITUTIONAL.

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SUMMARY OF ARGUMENTS

I. THAT SLP IS NOT MAINTAINABLE IN THE INSTANT MATTER


It is humbly submitted to this Hon’ble Court that under Article 136 of the Constitution of India,
any person, aggrieved by any order or decision of any court in India can approach the Supreme
Court through a Petition for Special Leave. The Petitioner has the locus standi to approach the
Hon’ble Supreme Court as civil appeals not covered by Article 133 can be brought to the apex
court under Article 136. Furthermore, the jurisdiction of Supreme Court can always be invoked
when a question of law of general public importance arises. Also, in case at hand the ‘substantial’
questions of law are involved. The jurisdiction conferred under Art. 136 on the SC is corrective
one and not a restrictive one. The questions of implementation of criminalization of
homosexuality and constitutionality of matrimonial laws are substantial question of law and of
general public importance. Hence Article 136 can be invoked for the same.

II. THAT SECTION 377 IS CONSTITUTIONAL AS IT DOES NOT VIOLATE THE PROVISIONS OF THE

CONSTITUTION.

It is contended that Section 377 is not constitutionally valid it does violate Fundamental Rights of
the citizens. The classification of sexual acts based on whether they are in consonance with the
ordinary course of nature or not is not founded on an intelligible differentia and there is no
rational nexus between such classification and objective sought by the legislation. Further,
Section 377 is arbitrary it does not provide equal status to heterosexual. The state has no
compelling and legitimate interest as even in case of heterosexual state promote use of non
contraceptives as part of family planning and public decency and morality cannot surpass the
constitutional morality as mentioned in constitution of India. Secondly, it is contended that
Section 377 does violate Article 15 of the constitution which prohibits discrimination on the
grounds of sex, race etc. Lastly, Section 377 does violate Article 21 as it qualifies the test of
substantive due process and is in the interest of public health. It is also contended that Right to
Privacy u/a 21 is also violated rendering Section 377 unconstitutional.

III. WHETHER THE MATRIMONIAL LAWS OF STATE OF XERBIA ARE UNCONSTITUTIONAL.

It is submitted that Hindu marriage act and special Marriage act which applies to the
petitioner is classifies into groups. Firstly there is no rational basis for the classification and
there is characteristics of overlapping in both the groups thus likes are not treated alike. There
is complete mismatch of the nexus of the act with the distinction as the same is unreasonable
and arbitrary as well. The applicability of various privileges to married couples would not be
available to same sex couples causing prejudice to the necessary interests. Secondly there is

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distinction solely on the basis of sex as the same is analogous to sexual orientation which is
discriminatory also. Thirdly the aspect of privacy to be let alone and to choose a partner and
marry are blatantly violated as the state recognition under the impugned act is not possible.
This breach also extends to the dignity by ensuing that while the status of marriage is not
granted hovering a stigma that the excluded group is undeserving.

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ARGUMENTS ADVANCED

I. THAT THE SLP IS MAINTAINABLE.


The substantial question of law with regard to constitutional interpretation provides a valid
condition[A]necessitating adjudication of substantial question of law[B]as the court can
decide the same inspite of it being a policy decisions[C]

A. That all the necessary conditions of Special Leave Petition are satisfied.
The petitioner has locus standi to approach the Honourable Supreme Court in the present
case. Article 136 of the Constitution is couched in the widest phraseology. 1 This Court's
jurisdiction is limited only by its discretion.2The jurisdiction conferred under Art. 136 on the
SC are corrective one and not a restrictive one.3 It is pertinent to note that the scope of Article
136 is very broad-based & confers discretion on the court to hear “in any cause or matter”.4
The plenitude of power under Article 136 of the Constitution has been authoritatively stated
by the Constitution Bench inDurga Shankar Mehta v. Thakur Raghuraj Singh and Ors.5
Article 136 is the residuary power of SC to do justice where the court is satisfied that there is
injustice.6In Kunhayammed and Others v. State of Kerala and Another,7 it was held that a
petition seeking grant of special leave to appeal may be rejected for several reasons, some of
which are as follows:

(i) If the Petition is barred by time; (ii) If the Petition is presented in a defective manner; (iii)
The petitioner has no locus standi to file the petition; (iv) The conduct of the petitioner
disentitling him to any indulgence by the court;(v) The question raised by the petitioner for
consideration by this Court being not fit for consideration or deserving being dealt with by
the Apex Court. In the instant case, it is obvious on a prima-facie level that the Appellants
have no grounds on which the instant petition for special leave could be rejected.

1
Nihal Singh &Ors v. State Of Punjab, AIR 1965 SC 26.
2
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors., AIR 1954 SC 520; Associated Cement Companies
Ltd v. P.N. Sharma, (1965) 2 SCR 366.
3
Haryana State Industrial Corpn. v. Cork Mfg. Co., (2007) 8 SCC 359 (SC).
4
Pritam Singh v. State, AIR 1950 SC 169.
5
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors AIR 1954 SC 520.
6
C.C.E v. Standard Motor Products, AIR1989 SC 1298; N Suriyakala v. A Mohan Doss &ors. (2007) 9 SCC
196; Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036.
7
Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359.

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B. That the matter involves substantial question of law.


It has been held that when a question of law of general public importance arises, or a decision
shocks the conscience of the court, its jurisdiction can always be invoked.8 The principle is that
this court would never do injustice nor allow injustice being perpetrated for the sake of
upholding technicalities.9 In any case, special leave would be granted from a second appellant
decision only where the judgment raises issue of law of general public importance.10 In the
case at hand, rights of thousands of homosexuals are in question. Also, the criminalization of
Sec 377 of Indian Penal Code has had an impact on public at large. Hence, the matter
concerned is a matter of public interest and national importance the same was reiterated by
the High court in Naz Foundation v. Govt. of NCT of Delhi.11

C. That the court has power of judicial review over policy decisions.
According to Article 13(3)(a) of the Constitution, law includes any ordinance, order bye- law,
rule, regulation, notification, custom or usage having the force of law in India.12 Whether the
impugned act violates or threatens to violate a fundamental right, the duty to enforce which
has been committed by the Constitution exclusively to the Judiciary.13 Although, this may be
called as a social policy of state is violative of the Constitution of India is rightly subject to
judicial review.14 Similarly any law that is arbitrary or discriminatory in nature violates
Article 14 and hence can be subjected to the bane of judicial review. Degree of deference to
be given to the legislature is dependent on the subject matter under consideration.15 When
matters of “high constitutional importance” such as constitutionally entrenched human rights
– are under consideration, the courts are obliged in discharging their own sovereign
jurisdiction, to give considerably less deference to the legislature than would otherwise be the
case.16 In the present case, the two constitutional rights relied upon i.e. 'right to personal
liberty' and 'right to equality' are fundamental human rights 17 which belong to individuals

8
Pawan Kumar v. State of Haryana (2003)11 SCC 241 (SC); see also H.M. Seervai, Constitutional Law Of
India (4th edn. Vol 1 2010).
9
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214.
10
Balakrishna v. Ramaswami, AIR 1965 SC 195.
11
Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277.
12
Constitution of India 1950.
13
Judiciary Prem Chand v. Excise Commr., AIR 1963 SC 996.
14
Ugar Sugar Mill v. Delhi Administration, (2001) 3 SCC 635
15
West Virginia State Board of Education v. Barnette, 319 US 624 (1943).
16
State of Madras v. V.G. Row, R. (Alconbury Ltd.) v. Environment Secretary, [2001] 2 WLR 1389, I.R.
Coelho (Dead) by LRs v. State of Tamil Nadu &Ors., (2007) 2 SCC 1 and Raja Ram Pal v. Hon'ble Speaker,
Lok Sabha &Ors., (2007) 3 SCC 184.
17
General Finance Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343.

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simply by virtue of their humanity, independent of any utilitarian consideration. Hence the
constitutional validity of Sec 377 of Indian Penal Code can be subjected to judicial review.

II. THAT SECTION 377 OF XERBIAN PENAL CODE IS UNCONSTITUTIONAL AS VIOLATIVE OF

PROVISIONS OF THE CONSTITUTION

Criminalisation of carnal intercourse is an arbitrary classification of an act without any nexus


with object sought to be achieved[A]and the classification on the basis of sexual orientation is
clearly discriminatory[B]as well as infringing the right to privacy and dignity[C].

A. That penalising consensual non vaginal sex violates fundamental right of equality
under Article 14.
i. Section 377 is vague and arbitrary law.
It is a cardinal principle of legal jurisprudence that a penal law is void for vagueness18 if its
prohibitions are not clearly defined19 and this amount to violation of article 14 of the
constitution.20 A person cannot be deprived of his liberty by a law which is nebulous and
uncertain in its definition and application.21 It is submitted that Section 377 criminalises any
person who voluntarily has carnal intercourse against the order of nature with a man, woman or
animal. It is applicable to both heterosexual and homosexual persons.22 The expression ―carnal
intercourse against the order of nature‖ is not defined anywhere in the statute. This results in
arbitrariness in the application of the law as well as in imposition of punishment under its penal
provisions.23
ii. That the classification made under section 377 is unreasonable.
It is a well-established position of law that while Article 14 forbids class legislation, it does not
forbid reasonable classification for the purposes of legislation.24 Classification must not be
arbitrary but scientific, and rest upon real and substantial distinction25 between those covered and
those left out.26 It is to be said that the conduct targeted by this section is closely correlated with
homosexuals27 and thus it is a discrimination against a class than making the conduct that defines

18
K.A. Abbas v. The Union of India and Anr., (1970) 2 SCC 760.
19
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
20
Harish Chandra Gupta v. State of Uttar Pradesh, AIR 1960 All 650.
21
A.K. Roy v. Union of India (1982) 1 SCC 271.
22
Section 377 of Xerbian Penal Code.
23
E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348.
24
D.S. Nakara v. Union of India, (1983) 1 SCC 305.
25
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
26
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
27
Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).

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the class criminal.28 It must at the very least mean that a bare desire to harm a politically
unpopular group29 cannot constitute a legitimate governmental interest.30

iii. That classification based on natural and unnatural sex or on the basis of procreative
capacity is not tenable.

It is submitted that scientific evidence shows that homosexuality, defined as erotic, emotional
and romantic attraction principally to one’s own sex, and is a natural variant of human
sexuality.31 The latest scientific data which have been peer-reviewed and approved by
scientists across the world support the notion that homosexuality is caused by a combination
of genetic and prenatal environmental factors,32 and thus cannot 'spread' from one to another.
It is submitted that homosexuality is not unnatural. The animal kingdom is replete with
examples of homosexual behaviour and has been recorded in more around 500 species
including birds and mammals, in many instances caught on camera. 33 There is extensive
scientific documentation of homosexual behaviour among flour beetles,34 rams,35 and even
bonobos,36 which are close relatives of humans. To criminalise what is an inborn
characteristic of human beings over which they have no control is much like criminalizing
left handed people for being left handed or blue eyed people for having blue eyes. It is
respectfully submitted that Section 377 in targeting homosexuals whose sexual orientation is
immutable, natural and innate, is prima facie arbitrary and a violation of Art 14.

iv. In Arguendo, there is no rational nexus with the object of classification.


If there is no rational nexus between classification and object sought it has to be held
unreasonable.37 The purported objective of adoption of this section was to enforce Victorian
notion of sexual morality which might be legitimate during that time but has lost it legitimacy

28
Lawrence v. Texas, 539 U.S. 558 (2003).
29
Romer v. Evans, 517 U.S. 620 (1996).
30
Department of Agriculture v. Moreno, 413 U.S. 528 (1973)
31
World Health Organisation, ICD-10 Classification of Mental and Behavioural Disorders: Clinical
Description and Behavioural Guidelines, Pg. 11
32
Anthony F. Bogaert, “Biological and Non-Biological Older Brothers and Men’s Sexual Orientation”,
PNAS, 11 July 2006 Vol. 103 No. 28, pp. 10771-10774. See also William H James, “Biological and
Psychosocial Determinants of Male and Female Human Sexual Orientation”, J. biosoc. Sci. (2005) 37,
Pg555–567.
33
Alison Abbott, “Snapshot: But is it Natural?”, NATURE, Vol. 443, 26 October 2006, p. 895. See also
Marlene Zuk, “Family Values in Black and White”, NATURE, Vol. 438, 23 February, 2006, Pg. 917.
34
K. A. Lev.an, T.Y. Fedina and S.M. Lewis, “Testing Multiple Hypotheses for the Maintenance of Male
Homosexual Copulatory Behaviour among Flour Beetles”, J. EV.OL. BIOL. 22 (2009) 60-70).
35
Charles E. Roselli and Fred Stormshak, “The Neurobiology of Sexual Partner Preferences in Rams”,
Hormones and Behav.ior 55 (2009) Pg611–620.
36
Franz B. M. de Waal, “Bonobo Sex and Society”, Sci Am. 1995 Mar; 272(3):82-8.
37
Deepak Sibal v. Punjab University (1989) 2 SCC 145.

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with passage of time.38 The law lost its validity39 as soon as its reason of adoption ceases.40
Another objective which the legislative has sought was Condemnation of non-procreative sex41
which is out dated and cannot be sustained as a legitimate State object in the present times.
Today, the State itself promotes the use of birth control measures among heterosexual couples as
part of family planning.42 The availability of modern scientific means of procreation like IVF,
semen donor and others run contrary to the classification. This section cannot be used to enforce
concept of sexual morality43 or public morality.44 It is submitted that morality is inherently
subjective and cannot inform penal intrusions into personal autonomy.45 The State cannot use
criminal law as an instrument46 to impose private morality.47

B. That section 377 violates article 15 of the Indian constitution.


i. That the word used SEX includes Sexual orientation.
The expression ―sex is a fluid and not a static concept.48 By prohibiting discrimination on the
basis of sex, Article 15 establishes that there is no standard behavioural pattern attached to
gender.49Accordingly, discrimination on the ground of sex necessarily includes prohibiting
discrimination on the basis of sexual orientation.50 The recognition by the courts that the modern
concept of sexual orientation is an integral part of the term sex prohibits discrimination on the
basis of sexual orientation.51 Article 15(1) prohibits differentiation and discrimination
involving unfavourable bias Kathi Raning v. State of Saurashtra52, 1952 SCR 435 against any
citizen of India only on grounds of religion, race, caste, sex place of birth, or any of them.
The crucial question to ask therefore is whether the operation of the impugned act results in a
prohibition only on any of the grounds mentioned in Articles 15(1) and 15(2). It is the effect
of the impugned act that is to be considered and if its effect is to discriminate on any of the

38
John Vallamattom v. Union of India (2003) 6 SCC 611; Anuj Garg v. Hotel Association of India (2008) 3
SCC 1.
39
Christopher Leslie, Creating criminals: The injuries inflicted by 'Unenforced' Sodomy Laws, 35 Harv. C.R.-
CL.L. Rev. 103.
40
Satyawati Sharma v. Union of India (2008) 5 SCC 287.
41
Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, Economic and Political Weekly, Nov. 18,
2006.
42
Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
43
Leung T C William Roy v. Minister for Justice, HCAL 160/2004 (2005).
44
Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.
45
S. Khushboo v. Kanniamal and Another, (2010) 5 SCC 600.
46
Lawrence v. Texas, 539 U.S. 558 (2003).
47
Dhirendra Nadan and Another v. State,Criminal Case Nos.HAA0085 & 86 of 2005
(Fiji High Court).
48
M. Nagraj v. Union of India, (2006) 8 SCC 212.
49
Anuj Garg v. Hotel Association of India, AIR 2008 SC 663.
50
Toonen v. Australia Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).
51
Halpern v Canada (AG), [2003]O.J. No. 2268.
52
Kathi Raning v. State of Saurashtra, 1952 SCR 435.

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prohibited grounds, it is bad. Further the term sex has been used in the background of
gender53 but there is no restriction with regards to sexual orientation. On the basis of ejusdem
generis the term has been given a wider interpretation54 though not limited to biological sex
of male or female covers hijras/ TGs55 thus the same does include sexual orientation of an
individual and should not be restricted to gender. The Delhi high court56 has endorsed the
above interpretation. Even the terms of ICCPR which consisted of term “sex” was held to
involve sexual orientation.57 Though the judgement has been overruled by the Supreme
Court58 the issue on article 15 has not been engaged at all. Thus the substantive law laid down
is not deterred

ii. That impact of the law must be considered as a factor to determine the discrimination
proposed by law.

Impact of the law is a test for determining whether a law is discriminatory. 59 If a law which is
facially neutral has a disproportionate impact on a class of persons which is discriminatory, it
will be held to violate the equality clause.60 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,61
however laudable the object of the State action may be. 62 Although Section 377 is facially
neutral and applies to homosexuals and heterosexuals alike, its impact on homosexual
persons as compared to heterosexuals is unequal and disproportionate as it fails to take into
account the different sexual orientations of individuals. It criminalises certain sexual
practices, which are normal sexual expressions for persons of homosexual sexual orientation.

53
Rajeshwari v. State of UP AIR 1954 ALL 608.
54
Corbiere v. Canada, (1999) 2 S.C.R. 203.
55
National Legal services authority v. UOI, 2014 5 SCC 438
56
Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.
57
Toonen v. Australia Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).
58
Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.
59
Vriend v. Alberta, (1998) 1 S.C.R. 493.
60
Vriend v. Alberta,(1998) 1 S.C.R. 493.
61
State of Bombay v. Bombay Education Society, (1955) SCR 568.
62
Punjab Province v. Daulat Singh, AIR 1946 PC 66.

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C. Whether the Right to Privacy as contemplated under Article 21 is violated by


Section 377 of the IPC.
Right to Privacy is an integral part of the Right to Life under Article 21.63Court has
recognised this right as an integral part of personal liberty under article 21.64Right to Privacy
clearly means one has a right to be left alone within one‘s home.65

i. That the section 377 violates the various rights evolve under right to privacy
jurisprudence intruding into ones intimate affairs of life.

That the section 377 violates aspects of right to privacy66 as evolved under Indian
jurisprudence through various case laws. Section 377 violates the right to privacy of everyone
including the homosexual men67 as they have left with only two choices68 either to restrain
themselves in engaging prohibited sexual acts or face the criminal prosecution.69 Personal
liberty takes in not only a right to be free from restrictions placed on his movements, but also
free from encroachments on his private life. A person's house,70 where he lives with his
family, is his "castle": it is his rampart against encroachment on his personal liberty.71 Section
377 does not draw any distinction between acts committed in public or in the privacy of the
home. Section 377 allows the police and state officials to recklessly intrude into theprivacy of
a person‘s home to determine what intimate acts took place in that space.

ii. Right to Sexuality, Sexual autonomy and Right to Choice of a Sexual Partner

Right to privacy has recognized an individual’s right of choice vis-à-vis their sex/gender
identity which is integral to their personality.72 This right is also premised upon the
personhood of the individual.73Homosexuals have freedom from unwarranted interference,
sanctuary and protection against intrusive observation and intimate decision to autonomy
with respect to the most personal of life choices.74 Supreme Court has ruled that while older
notions of privacy were premised upon theories of property, in the modern constitutional

63
K S Puttaswamy v. UOI, (2014) 6 SCC 433.
64
Kharak Singh v. State of UP, AIR 1963 SC 1295.
65
Govind v. State of Madhya Pradesh, (2005) SCC 158 (2).
66
R. Rajgopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632.
67
Dudgeon v. United Kingdom, (1982) 4 EHRR 149.
68
Modinos v. Cyprus, (1993) 16 EHHR 186.
69
Leung T C William Roy v. Secretary for Justice, Civ.il Appeal No. 317 of 2005.
70
State of West Bengal v. Committee for the Protection of Democratic Rights, (2010) 3 SCC 571.
71
Kharak Singh v. State of UP, AIR 1963 SC 1295.
72
NALSA v. Union of India, (2014) 5 SCC 438.
73
District Registrar and Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 496.
74
Griswold v. State of Connecticut, (1965) 381 US 278.

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sense the right to privacy is also premised upon the personhood of the individual.75 right to
privacy included the right to make decisions about the intimate aspects of one‘s life. 76

Section 377 allowed state officials cavalierly, and if necessary by force, to make deep and
searching inquiries and scrutiny into the most intimate parts of the individual‘s life. Section
377 denied individuals the right to decide for themselves whether to engage in particular
forms of consensual sexual activity.

iii. That there is no compelling state interest to restrict the enjoyment of this right by
homosexual and public morality is different from constitutional morality.

If the Court does find that a claimed right is entitled to protection as a fundamental privacy
right,77a law infringing it must satisfy the compelling State interest test.78 Court must first
find that a claimed right is entitled to protection79 as a Fundamental Privacy right.80 It is
submission of the plaintiff that there are no compelling reasons for the state to restrict this
right. The criminalisation of certain sexual acts between consenting adult males or females in
private is a severe restriction on a citizen‘s right to build relationships with dignity and free of
State intervention and cannot be justified as necessary. 81 State should not enforce the private
moral views of a section of society, which could be prejudicial.82 The notion of social
morality is inherently subjective and criminal law cannot be used to interfere anyone’s
personal autonomy.83 Even if it is the majoritarian view, it cannot be the only reason to
override ‘constitutional morality’ which stands derived from basic constitutional values.84The
diffusion of constitutional morality, not merely among the majority of any community but
throughout the whole, is an indispensable condition of government at once free and
peaceable.85 It is central to state that morality it enforces and the limits it may go are to be
found in the text and spirit of the Constitution itself.86

75
District Registrar and Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 632.
76
Griswold v. State of Connecticut, 381 US 278 (1965).
77
New York v. Class, 475 US 106 89 L. Ed 2d 81 (car).
78
Gobind v. State of M.P., (1975) 2 SCC 148.
79
R (Wood) v. Commissioner of Police of the Metropolis, (2010) 1 WLR 123(2009) 4 ALL ER 951
80
US v. Mitchell Miller 425 US 435 48 L Ed 2d 71 (1976).
81
Dhirendra Nadan & Anr. V. State, Criminal Appeal Case Nos.: HAA 85 & 86 OF 2005, High Court of Fiji.
82
National Coalition for Gay and Lesbian Equality & Ors. v. Minister of Justice & Ors., (1999) ZACC 17
83
S. Khushboo v. Kanniammal and Anr. (2010) 5 SCC 600.
84
Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.
85
Constitutional Assembly Debates: Official Reports Vol.V.II: November 4, 1948.
86
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 6 BHRC 127 (CC, 1998), 1998
(12) BCLR 1517 (CC).

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iv. That 377 is acting as an impediment in the process of protection of HIV and other
STD

The Government87 has also committed to addressing the needs of those at greatest risk of HIV
including Men who have Sex with Men and transgendered persons.88 Homosexuals have high
risk of HIV’s 89
and STDs 90
hence they are in urgent need 91
of HIV related prevention and
care services.92Criminal law increases stigma and discrimination against homosexuals, which
93
in turn fuels the HIV epidemic and is a barrier to HIV prevention programmes and hence
there is a need to remove this section and prosecutions against the homosexuals.94 Right to
health95 has been considered as important facet96 of the article 21.97 Various international98
and human rights conventions have recognised this right as a basic right of a human being.
One of the effects of criminal sanctions against homosexual acts is to reinforce the
misapprehension99 and increase the anxiety100 and guilt feelings101 of homosexuals leading, on
occasions, to depression and the serious consequences which can follow. 102 Courts have
considered serious psychological harm103 for gays which results from such discriminatory
provisions.104 Section 377 prevents the dissemination of information105 on the risk of HIV
transmission during male to male sex.106

87
National AIDS Control Organisation (NACO), Ministry of Health and Family Welfare (MoHFW), National
AIDS Control Programme Phase III[2007-2012] Strategy and Implementation Plan, November 2006, at pages
104-105 of Compilation – Volume 3.
88
United Nations General Assembly Declaration of Commitment on HIV. /AIDS, 2001, A/Res/S-26/2 at Para
37.
89
Reply Affidav.it on behalf of NACO and MoHFW before the Delhi High Court in Naz foundation case.
90
UNAIDS, Policy Brief, HIV. and Sex between Men, 2006 at pages 24-27 of Compilation – Volume 3.
91
MoHFW, HIV. Sentinel Surveillance and HIV. Estimation in India 2007 – A Technical Brief available at
92
NACO, Annual Report 2010-2011, available at naco.gov.in/documents/annual-reports.
93
Report of the Commission on AIDS in Asia available at:
data.unaids.org/pub/report/2008/20080326_report_commission_aids_en.pdf.
94
supra note 68.
95
Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165.
96
Surjit Singh v. State of Punjab, (1996) 2 SCC 336.
97
Paschim Bangal Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37.
98
Article 12 of the ICESCR General Comment No. 14 (2000) E/C.
12/2000/4; 11 August 2000].
99
SA Safren, A survey of HIV prevention outreach workers in Chennai, India, AIDS Educ Prev. 2006 Aug;
18(4):323-332 at page 26.
100
Thomas B, HIV in Indian MSM: Reasons for a concentrated epidemic & strategies for prevention, Indian J
Med Res., 2011 Dec; 134(6):920-9 at pages 72–73 and 75 of Compilation – Volume 4.
101
Thomas B, HIV. Prevention Interventions in Chennai, India: Are Men Who Have Sex with Men Being
Reached?, AIDS Patient Care STDS. 2009 November; 23 (11): 981–986 at pages 59-60.
102
Norris v. Republic of Ireland (1991) 13 ECHR 186.
103
Structural Violence Against Kothi-identified Men Who Have Sex with Men in Chennai, India‖: A Qualitative
Investigation, Venkatesh Chakrapani et al., AIDS Education and Prevention, 19(4), 346-364, 2007 at pages 35-
47.
104
National Coalition for Gay and Lesbian Equality and others v. Minister of Home Affairs 2000 (1) BCLR 39.

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D. Sections 377 violates right to human dignity as evolved under article 21 of the
constitution.
Right to life includes the right to live with human dignity107 and all that goes along with it.108
Our Constitution assured the dignity of the individual109and right to privacy110 is an integral
component of the right to live with dignity.111 Discrimination against homosexual112 denies to
them the right namely that all persons have the same inherent worth and dignity as human
beings, whatever their other differences may be.113 Human dignity includes all those aspects of
life which go to make a person‘s life meaningful, complete and worth living.114 The harm
inflicted by Section 377 radiates out and affects the very personhood115 of LGBT people and
violates their dignity.116 Section 377 creates a class of second-class citizens117 and
communicates the message that LGBT persons are not of the same value as other
individuals.118

E. That section 377 violates international legal norms.


Article 51 (c) directs the state to foster the respect for international law. It is duty of court to
interpret the constitution in the light of United Nations charter.119 Numerous international
norms have been read into fundamental rights.120 The provisions of the law must be in tune
with the conventions adopted by international community.121 Courts time and again have
directed state to incorporate international treaties to which it has ratified.122 Provisions of
conventions that officiate fundamental rights have been treated by court as fundamental and

105
Dandona L, et al, ―Sex behaviour of men who have sex with 79 men and risk of HIV. in Andhra Pradesh,
India‖, AIDS, 2005, Vol. 19, No.6, 611–619 at page 138.
106
Azadi Bachao Andolan Delhi Unit v. All India Radio and Others, Order of the CMM, Delhi, dated 23
October, 1997.
107
Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526.
108
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others (1981) 1 SCC 608.
109
Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295.
110
Maharashtra University of Health Sciences and Ors. v. Satchikitsa Prasarak Mandal and Ors., (2010) 3 SCC
786.
111
Upendra Baxi, ―Dignity in and with Naz‖, in Law Like Love: Queer Perspectiv.es of Law in India (Yoda:
New Delhi, 2011)
112
National Coalition for Gay and Lesbian Equality and others v. Minister of Home Affairs 2000 (1) BCLR 39.
113
V.riend v. Alberta, (1998) 156 DLR (4th) 385.
114
Noise Pollution (V.), In re,(2005) 5 SCC 733.
115
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 at para 11.
116
Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.
117
Egan v. Canada, (1995) 2 SCR 513.
118
Law v. Canada (Minister of Employment and Immigration), (1999) 1 S.C.R. 497.
119
Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225.
120
V.G Hegde, ‘Indian courts and international law’
121
Salil Bali v. Union of India, (2013) 7 SCC 705.
122
Vishaka v. State of Rajasthan (1997) 6 SCC 241.

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hence are enforceable.123 Even if a treaty has not been ratified but serves larger interest of the
public can be referred to.124 The change in international law and custom castes a
responsibility on Indian courts to broaden the ambit of the fundamental rights 125as it is duty
of court to expound the law when legislation marches behind.126 Making it amply clear that
constitutional reforms are influenced by international trends and customs.127 Furthermore the
ambit of article 21 that is right to life has been time and again expanded by Indian courts. 128
Section 377 of IPC not only contravenes Article 21 but also violates international treaties to
which India has ratified.

III. THAT THE MATRIMONIAL LAWS ARE UNCONSTITUTIONAL.


The distinction made by the marriage laws being discriminatory [A]affecting the intimate
relationship of the petitioners thereby imposing a restriction on their right to privacy and
dignity.[B]

A. That right to marriage is the fundamental right of the person and denial of the same
by matrimonial law would infringes the right to equality.
Marriage is one of the universal Social Institution. The matrimonial laws provide the essence
and flow of rights from the same. Thus the non-recognition of homosexuals amounts to
discrimination violating the right to equality under article 14 and 15.

i. That the formal distinction on the basis of sexual orientation amounts to


discrimination.

Hindu marriage act129 and special marriage act do not provide the opportunity for same sex
couples to marry under them. This disentitles them from claiming rights which would accrue.
The freedom to marry has long been recognized as one of the vital personal rights essential to
the orderly pursuit of happiness by free men.130 It is submitted that homosexuality is innate
and intrinsic to human sexuality.131 There is a strong evidence to suggest a genetic link to

123
Public Union for Civ.il Liberties v. Union of India (1997) 3 SCC 433.
124
G Sundarajan v. Union of India (2013) 6 SCC 203.
125
National Legal Service Authority v. Union Of India (2014) 5SCC 438.
126
Elezabeth v. Harwan Investment and trading pv.t ltd (1993) SCC Supp (2) 433.
127
Supra note 6.
128
K.P. Puttaswamy v. Union Of India (2017) 10 SCC 1, Supra note 5.
129
Section 7, 12, 13, 24, and 25 of Hindu marriage act and 9, 10,11,4 of SMA.
130
Loving v. Virginia (1967).
131
Anthony F. Bogaert, “Biological and Non-Biological Older Brothers and Men’s Sexual Orientation”,
PNAS, 11 July 2006 Vol. 103 No. 28, pp. 10771-10774.

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homosexuality.132 Hence the fact that gays and lesbians were not allowed to join the
institution of marriage also left a deep scar to their dignity.133 It perpetuated the view that
they are “not worthy of the same respect and recognition134 as opposite-sex couples”.135 “An
ability, desire, or promise to procreate is not and has not been a prerequisite for a valid
marriage in any State.”136 Thus homosexuality is not a manifestation of a choice that can be
prevented by the presence of criminal law.137 Just as one cannot choose to be homosexual one
cannot choose to abandon homosexual desire.138

ii. That classification of homosexual people is not found upon intelligible differentia
and does not meet the object sought by the state.
Matrimonial laws in the country does not provide right of cohabitation and marriage to
homosexual people. This is violation of their human rights enriched under various
international treaties139 which provides that no classification would be made on the basis of
race, colour, cast and sex of the person.140 These laws grant permission to exercise such rights
to one group of people out of two similarly placed people141 which is clear violation of article
14.142 Since same sex couples being involved in conjugal relationships are capable of meeting
the temporal requirements, it is apparent that the legislations have drawn a formal distinction
between the claimant and others, on the basis of a personal characteristic, namely sexual
orientation. Sexual orientation has already been determined to be an analogous ground to
those enumerated under Sex.143 Though similarity and not identity of treatment is
required144the nexus145 between such classification and the object sought by the state is not
fulfilled as the sole purpose of the marriage is not restricted to a) procreation with the

132
Brian S Mustanski et al (2005), “A Genomewide Scan of Male Sexual Orientation”, Hum Genet (2005) 116:
272–278.
133
Halpern v. Canada (2003) 65 OR (3d) 161 (CA).
134
President of the Republic of South Africa & Another v. Hugo (1997) (6) BCLR 708 CC.
135
Goodridge v. Department of Public Health (2003) 798 NE 2d 941.
136
Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
137
K.K. Gulia and H.N. Mullick, “Homosexuality: A Dilemma in Discourse”, Indian J Physiol Pharmacol
2010 54(1) 8.
138
American Psychological Association, American Psychiatric Association et al, Brief as Amicus Curae in
Lawrence v. Texas, 539 U.S. 558 (2003).
139
Universal Declaration of Human Rights.
140
K. Thimappa v. SBI, (2001) 2 SCC 259.
141
Siddharth Narrain & Birsha Ohdedar, A legal perspective on Same-Sex Marriage and other Queer
relationships in India, Orinam, http://orinam.net/resources-for/law-and-enforcement/same-sex-marriage-in-
india/.
142
Krishnasamy Reddiar Educational Trust v. Member Secretary, National Council for Teacher Education,
A.I.R. 2005 S.C. 2785.
143
Article 15. The xerbian constitution 1950.
144
Constitutional limitations, Prof Willis, first Edn, p.579.
145
State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 284.

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changing time. The sharing of intimacy and relationship is like and the law ought to operate
alike on all persons under like circumstances.146 It is a bond that people share with a mutual
consent and for a blissful life ahead. With changing time marriage is not the only way to the
procreation of children. Various scientific techniques such as IVF, Surrogacy etc. have
evolved to facilitate the offspring. This right of parenthood is universally assured and
extended even to homosexual people. In alternatively Adoption147 is also available as a means
to continue its family for these people. Today the number of children do not have their
families to support them, encouraging adoption should be sustained to promote the objective
of marriage.148 Adoption is geared more towards the promotion of the welfare of the child
and enhancement of his opportunities for a useful and happy life. 149 Hence there is no
reasonable nexus to the object sought by the state in classifying the homosexual and not
providing them the right to marriage.

B. Whether the Act constitutes the violation Article 21 of the constitution


i. That every person has right to marry to the partner of his own choice.

India being a democratic country permits every person to marry with the person of their
choice.150 Human rights should be rendered ‘dynamic and evolutive’.151 It is also believed that
the choice of a marital partner is an important personal decision, over which others,
particularly the state, should have no control.152 The common benefits and protection that
flow from the marriage should extended to the homosexual.153 Any law that prevents
homosexuals to enter into marriage154 is not reasonable as it differentiate them on the basis of
the sexual orientation.155 Many countries have recognised the right of homosexual to stay
together and get their marriage registered.156 Thus the straightforward argument in favour of
same-sex marriage is that if two people want to make a commitment of marriage, they should

146
Ram Krishna Dalmia v. S.R.Tendolkar, A.I.R. 1958 SC 538.
147
De Tavera v. Cacdac, Jr., No. L-76290, 167 SCRA 636, November 23, 1988
148
Santos, et al., v. Aranzanso, et al., No. L-23828, 16 SCRA 344, February 28, 1966.
149
Daoang v. Municipal Judge of San Nicolas, IlocosNorte, No. L-34568, 159 SCRA 369, March 28, 1988.
150
Lata Singh v. State of Uttar Pradesh, AIR 2006 SC 2522.
151
Christine Goodwin v. UK (n80) para 74 (App.No. 28957/95, 11 July 2002).
152
Mary L. Bonauto, Goodridge in Context, 40 Harv. C.R.-C.L. L. Rev. 1 (2005).
153
Baker v. State, No. 98-032, 1999 V.t. Lexis 406, at * 4 (V.t. Dec. 20, 1999).
154
Oliari v. Italy (Apps. Nos. 18766/11 and 36030/11, 31 July 2015).
155
Ferguson v. UK (App 8254 /11, 2 February 2011).
156
Oliari v. Italy (Apps. Nos. 18766/11 and 36030/11, 31 July 2015); Chapin and Charpentier v. France (App.
No. 40183/07, 9 June 2016); Schalk and Kopf v. Austria (App. No. 30141/04, 24 June 2010) para 94; Wilkinson
v. Kritzinger [2006] EWHC 835.

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be permitted to do so, and excluding one class of citizens from the benefits and dignity of that
commitment demeans them and insults their dignity.157

ii. That state intervention in regulation of choice of the partner in the marriage is
violation of right to privacy as contemplated under article 21.

Right to privacy derives its roots from the article 21 of the Indian constitution.158 The essence
lies for freedom from unwarranted interference by the state159it requires that no one shall be
subjected to arbitrary160 or unlawful interference with his privacy, family161, home162and
correspondence, nor to unlawful attacks on his honour and reputation. Though the Indian
constitution doesn’t impute any right to privacy directly, the same has been found through
various articles emphasizing that there is a right to be let alone in pursuit of one’s
happiness.163 Especially when it comes to marriage relation and the protected space of marital
bedroom164and any government intrusion in the same has been thoroughly scorned.165 The
privacy - dignity claims deserve to be examined with care and to be denied only when an
important countervailing interest is shown to be superior,166considering it being a sacred
right167it is amply clear that there are limits to which the state can experiment with the rights
of the people.168 Same-sex couples will often form long, lasting, loving and intimate
relationships. The choices they make in the context of those relationships may give rise to
the financial dependence of one partner on the other. Thus there exists no valid reasons for
denying the fundamental right to marry.169 They include shared shelter, sexual and personal
behaviour, services, social activities, economic support and children, as well as the societal
perception of the couple. However, it was recognized that these elements may be present in
varying degrees and not all are necessary for the relationship to be found to be
conjugal170These matters, involving the most intimate and personal choices a person may

157
Martha Nussbaum, A Right to Marry? Same-sex Marriage and Constitutional Law, Dissent Magazine
(2009).
158
K.P. Puttaswamy v. Union Of India (2017) 10 SCC 1.
159
D.D. Basu Pg. 4772 Vol 5.
160
Article 17, International Convention on Civil and Political Rights.
161
Article 12, Universal Declaration of Human Rights.
162
European convention on human rights.
163
Olmstead v. United States (1928) 277 US 438.
164
Griswold v. State of Connecticut (1965) 381 US 479.
165
Eisenstadt v. Baired (1972) 405 US 438.
166
Gobind v. State of M.P. 1975CriLJ1111.
167
Union pacific railway v. Batsford, (1891) 141 US 250.
168
Buck v. Bell (1927) 274 US 200.
169
Meyer v. Nebraska, (1923) 262 US 390.
170
Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).

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make in a lifetime, choices central to personal dignity and autonomy171 which involves his
right to form and protect the family of his choice172

iii. That the matrimonial law infringes the right to dignity under article 21.

The ancient173 right of human dignity174is an integral part of founding documents of various
national and international institutions 175 of public importance and It includes looking at how
the state and society respond to individuals or groups under the prevalent social norms or
moral expectations.176 The dignity as a general parlance is defined “the state of being worthy
of honor or respect”, “worthiness, excellence”, “a high or honorable rank or position”, and
“high regard or estimation”177“being esteemed178 and rational179under the law of nature, every
human being is held to be born free, rational, and endowed with dignity.180 The concept of
“equal dignity for all” underlined the court’s181decision to read “sexual orientation”. Human
dignity means that an individual or group feels self-respect and self-worth.182 And the denial
of the right to marriage would demean the status of these individuals. It is important to note
that pre-existing criminalization laws already disadvantage this community and, the
matrimonial laws failing to accommodate the needs, capacities, and circumstances of same-
sex couples in prohibiting same-sex marriage denying them the gender dignity183 would add
on to the problem and would be successful in dispersing the notion that a fundamental social
institution perpetuated the view that they are less worthy of recognition.184 On the other hand,
alongside dignity, the concept of fairness have been neglected to ameliorate the rights of
individuals.185

171
Planned Parenthood of Southeastern Pa v. Casey (1992) 505 US 833.
172
R. Rajagopal v. State of T.N. AIR 1995 SC 264.
173
Hubert Cancik, “‘Dignity of Man’ and ‘Persona’ in Stoic Anthropology: SomeRemarks on Cicero, DeOfficiis
105–107” [Cancik] in David Kretzmer & Eckart Klein (eds), The Concept of Human Dignity in Human Rights
Discourse (The Hague: KluwerLaw International, 2002) 19–39, p 19 [Kretzmer & Klein].
174
Preamble of United Nations Charter,1945
175
Article 1, Universal Declaration of Human Rights
176
David Feldman, “Human Dignity as a Legal Value – Part I”, (1999) Public Law 682 [Feldman I].
177
The Concise Oxford Dictionary of Current English, 9th edn (Oxford: Oxford University Press, 1998).
178
Available online at http://www.merriam-webster.com.
179
Izak Englard, “Human Dignity: from Antiquity to Modern Israel’s Constitutional.
Framework”, (2000) 21 Cardozo Law Review 1903, p 1904.
180
Hubert Cancik, “Dignity of Man’ and ‘Persona’ in Stoic Anthropology: Some Remarks on Cicero, De Offi
ciis P.24.
181
Vriend v. Alberta (1998) 1 SCR 493 (Vriend).
182
Law v. Canada (1999) 1 SCR 497 (Law).
183
Saksham foundation Charitable Society v. UOI, 2014(5) ALJ 496.
184
Halpern v. Canada (2003) 65 OR (3d) 161 (CA).
185
Grant Huscroft, “Freedom from Discrimination” in Rishworth, Huscroft & Optican, the New Zealand Bill of
Rights (South Melbourne: Oxford University Press, (2003) 366–397, p 385 [Huscroft II].

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PRAYER

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

1. UPHOLD that the present special leave petition is maintainable.


2. UPHOLD the order of the High Court declaring Section 377 as unconstitutional.
3. UPHOLD the order of the High Court declaring that the matrimonial laws of the
country are unconstitutional as they discriminate same-sex couples.

AND/OR

Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in the
interests of justice, equity and good conscience.
For this act of Kindness, the Respondent, as in duty bound, shall humbly pray.

Place:

Date:

Sd/-
(Counsel for the Petitioner

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