MEMORIAL ON THE BEHALF OF RESPONDENT

Participant Code- C97

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

CONCOURS, 2017

Before,

THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION UNDER ARTICLE 32 OF THECONSTITUTION OF INDIA

PREDICIR A GANAR .....................................................................................PETITIONER

v.

UNION OF INDIA.................................................................................RESPONDENT

CLUBBED WITH

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

CR DEN............................................................................................................PETITONER

v.

UNION OF INDIA….....................................................................................RESPONDENT

ON SUBMISSION TO THE SUPREME COURT OF INDIA

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

GOVERNMENT OF INDIA
MEMORIAL ON THE BEHALF OF RESPONDENT

TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................................................ 3

LIST OF ABBREVIATIONS ...................................................................................................... 4

STATEMENT OF JURISDICTION ........................................................................................... 5

STATEMENT OF FACTS ........................................................................................................... 6

ISSUES RAISED........................................................................................................................... 7

SUMMARY OF THE ARGUMENTS ........................................................................................ 8

ARGUMENTS ADVANCED ....................................................................................................... 9

I. THAT THE NOTIFICATION DATED 04.10.2016 ISSUED BY PREDICTIONS

REGULATORY AGENCY IS NOT VIOLATIVE OF THE RIGHT TO FREEDOM OF
TRADE AND PROFESSION GUARANTEED UNDER THE CONSTITUTION OF INDIA.
........................................................................................................Error! Bookmark not defined.

[1.1] THE NOTIFICATION ISSUED BY PREDICTIONS REGULATORY AGENCY TO

CEASE ALL THE BUSINESS IS REASONABLE. ............Error! Bookmark not defined.

[1.2] THE RESTRICTIONS IMPOSED BY THE PRA IS IN THE INTERESTS OF THE

GENERAL PUBLIC. .............................................................Error! Bookmark not defined.

[1.3] THE RESTRICTION IMPOSED BY THE PRA IS TO CURB UNFAIR TRADE

PRACTICE. ...........................................................................Error! Bookmark not defined.

II. THAT THE RIGHT TO PROPERTY OF PREDICIR A GANAR HAS NOT BEEN
VIOLATED OWING TO THE FRUSTRATION OF CONTRACT BETWEEN PAG AND
GOVERNMENT OF INDIA. ......................................................Error! Bookmark not defined.

[2.1] THE CONTRACT BETWEEN PAG AND GOVERNMENT OF INDIA HAS NOT
BEEN FRUSTRATED DUE TO THE ESTABLISHMENT OF THE PRA. ............... Error!
Bookmark not defined.

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MEMORIAL ON THE BEHALF OF RESPONDENT

[2.2] THE FUNDAMENTAL RIGHT TO PROPERTY OF PAG HAS NOT BEEN

VIOLATED AS GOVERNMENT HAS NOT DEPRIVED HIM FROM HIS RIGHT TO
PROPERTY. ..........................................................................Error! Bookmark not defined.

PRAYER .................................................................................................................................. 14

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MEMORIAL ON THE BEHALF OF RESPONDENT

INDEX OF AUTHORITIES

Cases

Amalgamated Investment & Property co Ltd v John Walker & Sons Ltd [1977] 1 WLR 164 ..... 14
Badri Narayan v. Kamdeo Prasad 2010 SCC OnLine Mad 4476. .............................................. 13
Fertilizer Corporation Kamgar Union Sindri v Union of India AIR 1981 SC 344. .................... 12
Ganga Singh v Santosh Kumar AIR 196 AII 201......................................................................... 13
Khardan co Ltd v Raymond co (India) Pvt Ltd [1963] 3 SCR 183. ............................................. 14
Krishnan Kakkanath v Govt of India AIR 1997 SC 128 .............................................................. 11
M/S Ramchand Jagdish Chand v Union of India AIR 1963 SC 563. .......................................... 10
Unichoyi v State of Kerala AIR 1962 SCR (1) 946. ..................................................................... 11
Union of India v International Trading Co [2003] 8 SCC 437. ................................................... 11

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MEMORIAL ON THE BEHALF OF RESPONDENT

LIST OF ABBREVIATIONS

1. AIR- All India Reporter

2. SC- Supreme Court Cases

3. SCC- Supreme Court Cases

4. SCR- Supreme Court reporter

5. Ltd. - Limited

6. Co. – Corporation

7. PaG – Predicir a Ganar

8. CR Den- ChhotaRajan Den

9. PRA- Predictions Regulatory Authority

10. ASP- Analyzed Sporting Predictions

11.GOI- Government of India

12. HMCL- HaiderMastan Cricket League

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MEMORIAL ON THE BEHALF OF RESPONDENT

STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum in response to the petition filed before the
Honourable Supreme Court under Article 32.

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

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MEMORIAL ON THE BEHALF OF RESPONDENT

STATEMENT OF FACTS

I. All was peace and harmony in the Democratic Republic of Gaul except for the studios of the
director-producer, Anticlimax, located in Lutetia. Anticlimax decided to recreate the story of
Gaulish King Androgynix and his wife, Queen Daffiris. This was when Whosmoralsarelastix,
hired, Agent Dubbelosix to find out the controversy in Anticlimax’s plot. He came back with
information: apparently, Anticlimax had decided on exploring the theme of homosexuality in his
magnum opus. When Anticlimax revealed the first poster of the movie. The poster got mixed
responses.

II. All was peace and harmony in the Democratic Republic of Gaul except for the studios of the
director-producer, Anticlimax, located in Lutetia. Anticlimax decided to recreate the story of
Gaulish King Androgynix and his wife, Queen Daffiris. This was when Whosmoralsarelastix,
hired, Agent Dubbelosix to find out the controversy in Anticlimax’s plot. He came back with
information: apparently, Anticlimax had decided on exploring the theme of homosexuality in his
magnum opus. When Anticlimax revealed the first poster of the movie. The poster got mixed
responses. The worst response was from the State of Belgica. The worst response was from the
State of Belgica.

III. Many same sex couples who had earlier kept their sexual orientation a secret started coming
out. These activities infuriated the fringe groups. The GCS filed a petition before the Supreme
Court of Gaul seeking a ban on the movie. The petition was dismissed by the Supreme Court
stating that the decision on movie release should be taken by the Gaulish Board of Film
Certification (“GBFC”). Finally the movie went to GBFC for approval. The panel suggested
some changes and Anticlimax accepted those changes however the scene in Belgica remain
unchanged. The movie was banned and the filed petition regarding ban and Section 377 GPC.

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ISSUES RAISED

I. WHETHER THE BAN ON EXHIBITION OF THE FILM ‘ LE SACRIFCE DE LA FEMME’

IN THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19(1) OF THE
CONSTITUTION OF GAUL?

II. WHETHER SECTION 377 OF THE GAULISH PENAL CODE IS UNCONSTITUTIONAL

AND VIOLATIVE OF PART III OF THE CONSTITUTION OF GAUL, AND THUS ,
OUGHT TO BE STRUCK DOWN?

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MEMORIAL ON THE BEHALF OF RESPONDENT

SUMMARY OF THE ARGUMENTS

I. THAT THE NOTIFICATION DATED 04.10.2016 ISSUED BY THE PREDICTIONS

REGULATORY AGENCY IS NOT VIOLATIVE OF THE RIGHT TO FREEDOM OF
TRADE AND PROFESSION GUARANTEED UNDER THE INDIAN CONSTITUTION.

Freedom of trade and profession is a fundamental right guaranteed under Art 19(1)(g) of the
constitution of India. The notification issued by the PRA is not violative of the right to freedom
of trade and profession as it put reasonable restrictions in the interest of the general public. Due
to the man-management of the players in HMCL there was immense outrage in the public that’s
why business operations has suspended by the PRA in the public interest. The fundamental right
of a citizen to carry on any occupation, trade or business under Art 19(1)(g) of the constitution of
India is not absolute: it is subject to reasonable restrictions which may be imposed by the state in
the interest of the general public.

II. THAT THE RIGHT TO PROPERTY OF PREDICIR A GANAR HAS NOT BEEN
VIOLATED OWING TO THE FRUSTRATION OF THE CONTRACT BETWEEN PAG
AND GOVERNMENT OF INDIA.

Section 56 of the Contract Act 1857 tells about the frustration of the contract. The right to
property of thePaG has not been violated as PaG is not deprived of its property. The contract
between Government and PaG has not frustrated as no such event occurs that has made the
performance of the contract impossible . The property of the PaG has been bestowed upon the
government by the arbitrator when PaG defaulted in its payment through the arbitration
proceedings that was mentioned in the agreement signed between government and the PaG. So
the right to property of the PaGhas not been violated.

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ARGUMENTS ADVANCED

I. THAT THE BAN ON THE EXHIBITION OF THE FILM ‘LE SACRIFICE DE LA FEMME’

IN THE STATE OF BELGICA DOES NOT VIOLATE ARTICLE 19(1)(a) OF THE

CONSTITUITON OF GAUL.

It is humbly submitted before the Hon’ble Supreme Court of Gaul that the ban on the movie is

not violative of Article 19(1)(a) of the Constitution of Gaul.

[1.1] THE BAN ON THE MOVIE WAS SOLELY IN THE THE INTEREST OF PUBLIC

ORDER AND SAFETY.

In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821, this

Court held that public order is synonymous with public safety and tranquility; it is the absence of

disorder involving breaches of local significance in contradistinction to national upheavals, such

as revolution, civil strife, war, affecting the security of the State .

In the light of the facts the conservative groups of people in the State of Belgica were greatly

infuriated because of certain facts of the movie . It was further corroborated with violent protest,

vandalism and state-wide strive.

[1.2] THAT THE CONTENT OF THE MOVIE DELIBERATELY OUTRAGED THE BELIEF

OF THE COMMUNITY.

According to the the Article 295 and 295A of GPC “deliberate and malicious acts, intended to

outrage religious feelings of any class by insulting its religion or religious beliefs. Whoever, with

deliberate and malicious intention of outraging the religious feelings of any class of citizens of

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India, or by words, either spoken or written, or by signs or by visible representations or

otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be

punished with imprisonment of either description for a term which may extend to 4[three years],

or with fine, or with both.]

In the present fact the people of Gaul considered Queen Daffiris as a symbol of virtue and

honour and no less than a goddess because she self-immolated herself rather giving up before

the evil king who killed her husband, the king of Gaul. This tale of self-immolation in the name

of honour was repeated through centuries and naturally it became sanctified tale for the people of

Gaul. The poster the movie depicted kissing scene between their queen and king so, the people

were greatly infuriated.

[1.3] THAT THE THE FREEDOM OF SPEECH AND EXPRESSION IS ACCOMPAINED

WITH CONSTITUTIONAL LIMITATION.

In the case Devidas Ramchandra Tuljapurker v State of Maharastra the court observed that as far

as the use of the name of historically respected personality is concerned, learned senior counsel,

while submitting so, is making an endeavor to put the freedom of speech on the pedestal of an

absolute concept. Freedom of speech and expression has to be given a broad canvas, but it has to

have inherent limitations which are permissible within the constitutional parameters. The Court

reiterated the principle already opined by the Hon’ble Supreme Court in various cases which is

that the freedom of speech is a right of great value and transcends and with the passage of time

and growth of culture, it has to pave the path of ascendancy, but it cannot be put in the

compartment of absoluteness. There is constitutional limitation attached to it. To elaborate, the

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“contemporary community standards test” becomes applicable with more vigour, in a greater

degree and in an accentuated manner”.

Therefore it can be safely concluded that the ban on the movie ‘Le Sacrifice de la Femme’ in the

State of Belgica does not violate Article 19(1)(a) of the the Constitution of Gaul.

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II. THAT THE SECTION 377 OF THE GAULISH PENAL CODE IS CONSTITUTIONAL

AND DOES NOT VIOLATE PART III OF THE CONSTITUTION OF GAUL.2.2

It is humbly submitted in the Hon’ble Supreme Court of Gaul that the Section 377 of the

Gaulish Penal Code is constitutional and does not violate Part III of the Constitution of Gaul.

[2.1] THE SECTION 377 OF THE GPC IS NOT GENDER BIASED.

Section 377 of the GPC states that “Unnatural offences.—Whoever voluntarily has carnal

inter-course against the order of nature with any man, woman or animal, shall be punished with

1[imprisonment for life], or with impris-onment of either description for a term which may

extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to

constitute the carnal intercourse necessary to the offence described in this section”.

It is relevant to mention here that the Section 377 GPC does not criminalize a particular people

or identity or orientation. It merely identifies certain acts which if committed would constitute

an offence. Such a prohibition regulate sexual conduct regardless of gender identity &

orientation. So, it does not violate Article 15 anyhow.

[2.2] THAT THE RIGHT TO PRIVACY DOES NOT INCLUDE RIGHT TO COMMIT ANY

OFFENCE.

Overruling the Naz Foundation case the Supreme Court in the the case Suresh Kumar Khousal

& Anr. V Naz Foundation said that the impugned order does not discuss the concept of “carnal

intercourse against the order of nature” and does not adequately show how the section violates

the right to privacy and that also the right to privacy can be curtailed by following due process of

law and the Code of Criminal Procedure prescribes a fair procedure, which is required to be

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followed before any person charged of committing an offence under Section 377 IPC can be

punished. The right to privacy does not include the right to commit any offence as defined under

Section 377 IPC or any other section.

[2.3]: THAT THE SECTION 377 GPC SERVES THE PURPOSE OF MAINTANING PUBLIC

MORALITY AND HEALTHY ENIVRONMENT.

Article 19(2) expressly permits imposition of restrictions in the interest of decency and morality.

Law cannot run opposite to the society since it reflects the perception of the society. In any

parliamentary secular democracy, the legal conception of crime depends upon political as well as

moral consideration notwithstanding considerable overlap existing between legal and safety

conception of crime i.e. moral factor.

[2.4] THAT THE GAULISH SOCIETY IS YET TO ACCEPT THE CONCEPT OF THIRD

GENDERS.

Law and Society are synonymous to each other so, the provisions should be made keeping status

of the society in consideration. Gaulish society is yet to demonstrate readiness or willingness to

show greater` tolerance to practice or accept the concept of third genders. Social and sexual

mores in foreign countries cannot justify de-criminalization of homosexuality in Gaul. Western

society’s moral standards are not as high as in Gaul. In reference to 42nd report of the Law

Commisssion where it was observed that Gaulish society by and large disapproved of

homosexuality, whose disapproval is strong enough to justify it being treated as a criminal

offence even where the adults indulge in it private.

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Therefore it can be safely concluded that the Section 377 of the GPC is constitutional and does

not violate Part III of the Constitution of Gaul, and thus should not be struck down.

PRAYER

Therefore in the light of the facts of the case, issues raised, arguments advanced and authorities
cited this Hon’ble court may be pleased to adjudge and declare that:

In the case of PaG and CR Den vs. Union of India:

The notification dated 04.10.2016 issued by the Predictions Regulatory Agency is not violating
the Right to Freedom of Trade and Profession guaranteed under Art 19(1)(g) of the Indian
Constitution.

In the case of PaG vs. Union of India:

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The right to Property of Predicir a Ganar has not been violated as there is no frustration of
contract between the government and PaG.

And may pass any other order in favour of the Respondent that it may deem fit in the interest of
justice, equity and good conscience.

SD/-

Counsel for Respondent

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