MEMORIAL ON THE BEHALF OF PETITIONER

Participant Code- C97

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

NAVITAS, 2018
Before,
THE HON’BLE SUPREME COURT OF GAUL
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF GAUL
ANTICLIMAX PRODUCTION PVT. LTD. & ORS……………………..PETITIONER
v.
STATE OF BELGICA.................................................................................RESPONDENT
CLUBBED WITH
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF GAUL
ANTICLIMAX & ORS…………………………………….…………………….PETITONER
v.
UNION OF GAUL.………………………………………………………..….RESPONDENT

ON SUBMISSION TO THE SUPREME COURT OF GAUL

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

GOVERNMENT OF GAUL
 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ 1

INDEX OF AUTHORITIES........................................................................................................... 2
LIST OF ABBREVIATIONS ......................................................................................................... 3
STATEMENT OF JURISDICTION............................................................................................... 4
STATEMENT OF FACTS ............................................................................................................. 5
ISSUES RAISED ............................................................................................................................ 6
SUMMARY OF THE ARGUMENTS ........................................................................................... 7
ARGUMENTS ADVANCED ........................................................................................................ 8
I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacridice de la Femme” IN THE
STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE CONSTITUTION OF
GAUL. ............................................................................................................................................ 8

II.THAT SECTION 377 OF THE GAULISH PENAL CODE IS UNCONSTITUTIONAL AND

VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS, OUGHT TO BE
STRUCK DOWN. ........................................................................................................................ 11

PRAYER ....................................................................................................................................... 16
 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
 LIST OF ABBREVIATIONS
AIR -All India Rank
SC- Supreme Court Cases
3. SCC- Supreme Court Cases
4. SCR- Supreme Court reporter
5. Ltd. - Limited
6. Co. – Corporation
7. Ors.-Others.
8. Art.-Article
9. Pvt. -Private.
10. GPC- Gaul Penal Code.
11. GOI- Government of India
12. GBFC- Gaul Board of Film Certificate.
 STATEMENT OF JURISDICTION

In the present Writ Petition (civil) No.312 of 2018 under article 32 of the Constitution of Gaul
concerning the matter Anticlimax Production Pvt. Ltd. & Ors. v State of Belgica & Ors. The
petitioner humbly submits to the jurisdiction of this Hon’ble Supreme Our of Gaul.
In the present Writ Petition (criminal) No.213 of 2018 under article 32 of the Constitution of Gaul
concerning the matter Anticlimax & Ors. v Union of Gaul, the petitioner humbly submits to the
jurisdiction of this Hon’ble Supreme Court of Gaul.
The present memorandum sets forth the facts, contentions and arguments in the present
case.
 STATEMENT OF FACTS
Anticlimax, director-producer of Gaul decided to recreate the story of Gaulish King Androgynix
and his wife, Queen Daffiris. This was when Whosmoralsarelastix, hired, Agent Dubbelosix, he
came back with information, apparently, Anticlimax had decided on exploring the theme of
homosexuality. When Anticlimax revealed the first poster of the movie. The poster got mixed
responses. The worst response was from the State of Belgica.
While all of this was happening, another burning debate in Gaul was resurfacing. In 2009, the High
Court of Lutetia had repealed Section 377 of the Gaulish Penal Code (GPC). However, things had
changed in 2013 when the Supreme Court of Gaul overturned the High Court judgment and
reinstated Section 377.
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 GBFC.
Finally, the film went to the GBFC for approval. The panel suggested certain amendments.
Anticlimax made the amendments. However, the situation remained unchanged in Belgica and the
Government of Belgica, issued an order banning the public exhibition of the movie. Anticlimax
then filed a petition before the Supreme Court under Article 32 challenging the ban on his film by
the state of Belgica.
By this time, the issue of LGBTQ rights was also gaining ground and so Anticlimax with few
others filed a writ petition demanding a repeal of the detested Section 377.
 ISSUES RAISED

I. WHETHER THE BAN ON THE EXHIBITION OF THE FILM “Le Sacrifice de la

Femme” IN THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE
CONSTITUTION OF GAUL.

II. WHETHER SECTION 377 OF GAULISH PENAL CODE IS UNCONSTITUTIONAL

AND VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS,
OUGHT TO BE STRUCK DOWN.
.
 SUMMARY OF THE ARGUMENTS

I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacrifice de la Femme” IN
THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE
CONSTITUTION OF GAUL.
The fundamental right Art. 19(1) (a) guarantees to all the citizen freedom of speech and
expression. Under Art.19 (2), however the state is not prevented from making a law, in so far as
such law imposes reasonable restrictions on the exercise of the right conferred by the said sub
clause in the interests of the public order, decency or morality defamation or incitement to an
offence imposing in the interests of general public, reasonable restriction on the exercise of above
right. However, the ban on the movie does not comes under the reasonable restriction imposed
under 19 (2).
II. THAT SECTION 377 OF GAULISH PENAL CODE IS UNCONSTITUTIONAL AND
VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS, OUGHT
TO BE STRUCK DOWN.
Section 377 of the Gaulish Penal Code is violative of Fundamental Rights.
 ARGUMENTS ADVANCED

I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacridice de la Femme” IN
THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE
CONSTITUTION OF GAUL.
It is humbly submitted before the hon’ble Supreme Court of Gaul that the ban on the exhibition of the film
“Le Sacrifice de la Femme” in the state of Belgica is not violative of article 19 (1) of the constitution of
Gaul .
[1.1] THAT THE RESTRICTION IMPOSED DOES NOT COMES UNDER THE AMBIT
OF ARTICLE 19 (2).
It is humbly submitted before the Hon’ble Supreme Court of Gaul that the ban on the exhibition
of the movie is violative of the fundamental right to freedom of speech and expression because the
ban does not put reasonable restriction. Art. 19 (1) (a) guarantees to all the citizen freedom of
speech and expression. Under Art.19 (2), however the state is not prevented from making a law,
in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the
said sub clause in the interests of the public order, decency or morality defamation or incitement
to an offence imposing in the interests of general public, reasonable restriction on the exercise of
above right.
In the case of Romesh Thapar v. State of Madras1 the court defined public order “public order” as
that “state of tranquility which prevails among the members of a political society” and also held
that ordinary or local beaches of public order were no ground for restricting the freedom of speech.
In the case in hand only particular sect of people that is the conservatives Gaul in Belgica who
were protesting against the movie.
The counsel also emphasizes on the fact that the fundamental right of free expression guaranteed
under the Gaulish constitution covers even the medium of movies, if the film is unobjectionable
and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be
suppressed on account of threat of demonstration and procession or threats of violence. That would
tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the
duty of the State to protect the freedom of expression since it is a liberty guaranteed against the

1
Romesh Thappar v State of Madras AIR 1950 SC 124
State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory
duty to prevent it and protect the freedom of expression that the opinion on the film ought not to
be rested on the isolated passages disregarding the main theme and its message; here in the present
case famous director, Anticlimax just wants to give the message of revolutionary the social change
in state of Gaul.
Freedom of expression, which is legitimate and constitutionality protected cannot be held to
ransom by an intolerant group of people. The fundamental freedom under article 19(1) (a) can be
reasonably restricted only for the purposes mentioned in article 19 (2) and the restriction must be
justified on the anvil of necessity and not the quirks and of policies and operations is not a ground
for restricting expression. The present case after the expert committee made the significant changes
as well as the panel was all praises for the film and moreover the film did not even claimed about
historical authenticity. The GBFC thought this would greatly placate the conservative Gauls since
it attributes honor, bravery and virtue to Queen Daffiris. Indeed just because of the fear of situation
turning worst and because of the inefficiency of the authority of state of beligica to control the
situation and maintain law and order is unfair. In case of S. Rangarajan v. P. Jagjivan Ram2 the
three judge bench S.C. headed by Justice KJ Shetty upheld the right of the filmmaker to make
movies and ruled that freedom of speech and expression which is legitimate cannot be held to
ransom by an intolerant group of people. The state cannot plead its inability to handle the hostile
audience problem. It is obligatory duty to prevent it and protect the freedom of expression.
In the case of Manohar Lal Sharma v. Sanjay Leela Bhansali & others3. It was held the by the
bench, headed by Chief Justice Dipak Misra, favor of the Padmaavat makers. “Creative freedom,
freedom of speech and expression can’t be guillotined... artistic freedom has to be protected.”
Misra said it is the state’s duty and obligation to maintain law and order, and it cannot use its
machinery to prohibit a film’s exhibition citing risk to public order. Hence, it is the ban on the
exhibition of the movie is violative of fundamental right guaranteed by the Gaulish constitution.
[1.2] THAT THE CONTENTION THAT THE RELIGIOUS SENTIMENTS OF THE
PEOPLE ARE HURT HERE SERVES FALLACIOUS GROUND FOR THE BAN OF
MOVIE.

2
S Rangarajan v P Jagjivan Ram 1989 SCR (2)204
3
Manohar Lal Sharma v Sanjay Leela Bhansali
The Counsel further states that the right to freedom of speech and expression has been described
as the touchstone of individual liberty, the matrix, the indispensable condition of nearly every form
of freedom.4In F.A. Picture International v Central Board of Film Certification5, it was held that
artists, writers, playwrights and film makers are the eyes and the ears of a free society. They are
the veritable lungs of a free society because the power of their medium imparts a breath of fresh
air into the drudgery of daily existence. Their right to communicate ideas in a medium of their
choosing is as fundamental as the right of any other citizen to speak. Our constitutional democracy
guarantees the right of free speech and that right is not conditional upon the expression of views
which may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence,
those who express views which are critical of prevailing social reality have a valued position in
the constitutional order. History tells us that dissent in all walks of life contributes to the evolution
of society. Those who question unquestioned assumptions contribute to the alteration of social
norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp
down on the free expression of opinion must hence be frowned upon. Sometimes these opinion
may have the clash with the sentiment of different people with different believes and feeling, living
in the society but the restriction can’t be imposed just on the basis of this ground. In the case in
hand when the film went for approval to GBFC the expert committee consist of 2 veteran historian
had all praises for it and also considered it as a work of fiction as well as the film did not even
claim historical authentication. Moreover the most significant change made and the title of the
movie was altered. Thus, on the part of the appellant all the precautions was taken so as to avoid
the controversy and deprave himself of the onus of hurting anyone sentiments or feeling. Indeed,
in the case of Ushaben Navichandran Trivedi v. Bhagyalakhmi Chitra Mandir 6it was held that the
movies are meant only for those who are willing to see it, no one is forcing anyone to see it
Thus, the contention that the movie hurts the religious feeling or the sentiments of sect of people
holds no valid ground.
[1.3] THAT THE MOVIE IS NOT INDECENT OR IMMORAL.

4
Palko v Connecticut, 302 US 319 (1937).
5
F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145
6
It is humbly submitted before this court that freedom of speech and expression as enshrined
under Article 19(1) (a) of the Constitution is not absolute in view of Article 19(2) of the
Constitution. We reiterate the said right 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.7
II.THAT SECTION 377 OF THE GAULISH PENAL CODE IS UNCONSTITUTIONAL
AND VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS,
OUGHT TO BE STRUCK DOWN.
It is humbly submitted before the Hon’ble Supreme Court of Gaul that Section 377 of the Gaulish
Penal Code is violative of Fundamental Rights. This contention is based on the following
submissions:
[2.1] Section 377 IS VIOLATIVE OF FUNDAMENTAL RIGHTS ENUMERATED IN
PART III OF GAULISH CONSTITUTION:
The counsel argues that on account of section 377 covering sexual acts between consenting adults
in private, it infringes the fundamental rights guaranteed by the Constitution of
Gaul. Homosexuality is no longer treated as a disease or disorder and near unanimous medical and
psychiatric expert opinion treats it as just another expression of human sexuality. Equality before
law The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of Gaul.8 Further, it has been submitted on behalf of the appellant that
unnatural offences—Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to
fine. 9 Legislative objective of penalizing “unnatural sexual acts” has no rational nexus to the
classification created between procreative and non-procreative sexual acts, and is thus violative of
Article 14 of Constitution of Gaul.
It is mentioned in our Constitution that State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them.10 The expression “sex” as used in

7
Devidas Ramachandra Tuljapurkar Vs. State of Maharashtra (2015)
8
Art. 14, Gaulish Constitution.
9
377. Unnatural offence. Gaulish Penal Code, 1872.
10
Art.15, Gaulish Constitution.
Article 15 cannot be read restrictive to “gender” but includes “sexual orientation” and, thus read,
equality on the basis of sexual orientation is implied in the said fundamental right against
discrimination. The Appellant argues that criminalization of predominantly homosexual activity
through Section 377 IPC is discriminatory on the basis of sexual orientation and, therefore,
violative of Article 15. Sexual orientation is a ground analogous to sex and that discrimination on
the basis of sexual orientation is not permitted by Article 15.
It is further to be stated that the prohibition against homosexuality in Section 377 GPC curtails or
infringes the basic freedoms regarding freedom of speech and expression in that, an individual's
ability to make personal statement about one's sexual preferences, right of association/assembly
and right to move freely so as to engage in homosexual conduct are restricted and curtailed. Thus,
Section 377 is violative of Article 19(1) (a).
The English law was reformed in Britain by the Sexual Offences Act, 19, which de-criminalized
homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the
report of Wolfenden Committee. The Committee advising the Parliament had recommended in
1957 repeal of laws punishing homosexual conduct.
[2.2] THAT SECTION 377 OF GPC IS NOT IMMORAL.
The counsel on behalf of the appellant contends that section 377 GPC is based upon traditional
Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e.,
for the purpose of procreation only. Any non-procreative sexual activity is thus viewed as being
“against the order of nature”. The submission is that the legislation criminalizing consensual oral
and anal sex is outdated and has no place in modern society. Section 377's legislative objective is
based upon stereotypes and misunderstanding that are outmoded and enjoys no historical or logical
rationale which render it arbitrary and unreasonable. Furthermore, morality by itself cannot be a
valid ground for restricting the right under Articles 14 and 21. Public disapproval or disgust for a
certain class of persons can in no way serve to uphold the constitutionality of a statute. In any
event, abundant material has been placed on record which shows that the Indian society is vibrant,
diverse and democratic and homosexuals have significant support in the population.
2.3 THAT THERE HAS BEEN AN ABUSE OF SECTION 377 OF GPC
The Appellant claims to have been impelled to bring this litigation in public interest on the ground
that discriminatory attitudes exhibited by state agencies towards gay community, MSM or trans-
gendered individuals, under the cover of enforcement of Section 377 IPC, as a result of which
basic fundamental human rights of such individuals/groups (in minority) stood denied and they
were subjected to abuse, harassment, assault from public and public authorities.
By criminalizing private, consensual same-sex conduct, Section 377 GPC serves as the weapon
for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush
money; and perpetuates negative and discriminatory beliefs towards same-sex relations and
sexuality minorities. Section 377 GPC thus, creates a class of vulnerable people that is continually
victimized and tortured by the provision. It has been submitted that the fields of psychiatry and
psychology no longer treat homosexuality as a disease and regard sexual orientation to be a deeply
held, core part of the identities of individuals.
Further it is reverentially submitted that in Jayalakshmi v. The State of Tamil Nadu11 in which a
eunuch had committed suicide due to the harassment and torture at the hands of the police officers
after he had been picked up on the allegation of involvement in a case of theft. There was evidence
indicating that during police custody he was subjected to torture by a wooden stick being inserted
into his anus and some police personnel forcing him to have oral sex. The person in question
immolated himself inside the police station on 12.6.2006 and later succumbed to burn injuries on
29.6.2006. The compensation of Rs. 5, 00,000/- was awarded to the family of the victim, states the
magnitude and range of exploitation and harsh and cruel treatment experienced as a direct
consequence of Section 377 IPC.
2.4 SECTION 377 IPC AS AN INFRINGEMENT OF THE RIGHTS TO DIGNITY AND
PRIVACY
Dignity as observed by Justice L'Heureux-Dube, is a difficult concept to capture in precise terms
12
[Egan v. Canada, (1995) 29 CRR (2nd) 79 at 106]. At its least, it is clear that the constitutional
protection of dignity requires us to acknowledge the value and worth of all individuals as members
of our society. It recognises a person as a free being who develops his or her body and mind as he
or she sees fit. At the root of the dignity is the autonomy of the private will and a person's freedom
of choice and of action. Justice V.R. Krishna Iyer observed that the guarantee of human dignity
forms part of our constitutional culture 13 .In Francis Coralie Mullin v. Administrator, Union

11
Jayalakshmi v. The State of Tamil Nadu (2007)
12
Egan v Canada (1995) 29 CRR (2nd) 79 at 106.
13
Prem Shankar Shukla v. Delhi Administration.
Territory of Delhi and others14, Justice P.N. Bhagwati said that right to life includes the right to
live with human dignity and all that goes along with it, namely, the bare necessaries of life such
as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself
in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Every act which offends against or impairs human dignity would constitute deprivation pro tanto
of this right to live and it would have to be in accordance with reasonable, fair and just procedure
established by law which stands the test of other fundamental rights.” Article 17 of the
International Covenant on Civil and Political Rights (to which India is a party), refers to privacy
and states that no one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home and correspondence, nor to unlawful attacks on his honor and reputation .The
European Convention on Human Rights also states that: “Everyone has the right to respect for his
private and family life, his home and his correspondence. There shall be no interference by a public
authority except such as is in accordance with law and is necessary in a democratic society in the
interests of national security, public safety or the economic wellbeing of the country, for the
protection of health or morals or for the protection of the rights and freedoms of others.”
The right to privacy thus has been held to protect a “private space in which man may become and
remain himself. The ability to do so is exercised in accordance with individual autonomy. Mathew
J. in Gobind v. State of M.P. 15 referring to the famous Article, “The Right to Privacy” by Charles
Warren and Louis D. Brandeis, (4 HLR 193), stressed that privacy - the right to be let alone - was
an interest that man should be able to assert directly and not derivatively from his efforts to protect
other interests.
The privacy recognises that we all have a right to a sphere of private intimacy and autonomy
which allows us to establish and nurture human relationships without interference from the outside
community. The way in which one gives expression to one's sexuality is at the core of this area of
private intimacy. If, in expressing one's sexuality, one acts consensually and without harming the
other, invasion of that precinct will be a breach of privacy.

14
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others.
15
Govind v. State of M.P.
The Supreme Court has acknowledged that the sphere of privacy deals with persons and not places.
Explaining this concept in District Registrar & Collector, Hyderabad v. Canara Bank 16 Justice
Lahoti referred to observations of Justice Stevens in Thornburgh v. American College of O and G,
476 US 747 (1986)17, that “the concept of privacy embodies the moral fact that a person belongs
to himself and not to others nor to society as a whole”. Justice Lahoti, also referred to an
observation of a commentator in (1976) 64 Cal. L. Rev 1447, that privacy centres around values
of repose, sanctuary and intimate decision. Repose refers to freedom from unwanted stimuli;
sanctuary to protection against intrusive observation; and intimate decision, to autonomy with
respect to the most personal of life choices.
Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar
as it criminalizes consensual sexual acts between adults in private. These fundamental rights had
their roots deep in the struggle for independence and, as pointed out by Granville Austin in “The
Indian Constitution - Cornerstone of a Nation”, “they were included in the Constitution in the hope
and expectation that one day the tree of true liberty would bloom in India”. In the words of Justice
V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional
armor. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen18.

District Registrar & Collector, Hyderabad v. Canara Bank

17
Thornburgh v. American College of O and G, 476 US 747 (1986)
18
Maneka Gandhi v Union of India
 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 Anticlimax Production Pvt. Ltd. & Ors. v. State of Belgica & Ors.
The ban on the exhibition of the film ‘Le Sacrifice de la Femme’ is violative Art. 19 (1) of Gaulish
Constitution.
In the case of Anticlimax & Ors. v. Union of Gaul:
Sec.377 of the Gaulish Penal Code is unconstitutional and violative of Part 3 of Constitution of
Gaul and ought to be struck down.

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

SD/-
Counsel for Petitioner.