STATEMENT OF JURISDICTION

The petitioner invokes the writ jurisdiction of the hon’ble Supreme Court of india under Article
32 of the Constitution of India by way of Public Interest Litigation for seeking the compensation of
violation of fundamental rights of victims.

The petitioners have approached the Hon’ble Supreme Court under Article 32 of the
Constitution which reads as under:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.”

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

MEMORIAL ON BEHALF OF THE PETITIONER

 STATEMENT OF FACT

Section 497 of Indian Penal Code, 1860 states that “Whoever has sexual intercourse
with a person who is and whom he knows or has reason to believe to be the wife of another
man, without the consent or connivance of that man, such sexual intercourse not amounting
to the offence of rape, is guilty of the offence of adultery, and shall be punished with
imprisonment of either description for a term which may extend to five years, or with fine,
or with both. In such case the wife shall not be punishable as an abettor”.

The history of Section 497 reveals that the law on adultery was for the benefit of the
husband, for him to secure ownership over the sexuality of his wife. It was aimed at
preventing the woman from exercising her sexual agency. Thus, this section was never
conceived to benefit women. In fact, the provision is steeped in stereotypes about women
and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery
become evident when the provision is considered as a whole. A person engaging in sexual
relations with the wife of another man won’t be charged for adultery if the husband of the
wife so involved gives his consent. This clearly indicates how women are objectified in the
hands of their husbands.

Section 198(2) in The Code Of Criminal Procedure, 1973 states that “no person
other than the husband of the woman shall be deemed to be aggrieved by any offence
punishable under section 497 or section 498 of the said Code: Provided that in the absence
of the husband, some person who had care of the woman on his behalf at the time when
such offence was committed may, with the leave of the Court, make a complaint on his
behalf”.

The Petitioner has submitted this writ petition in the nature of Public Interest
Litigation, challenging the constitutionality of Section 497 of Indian Penal Code to shield
Indian Men from being punished for extra – marital relationships by vengeful women or

MEMORIAL ON BEHALF OF THE PETITIONER

their husbands. Also challenging the constitutionality of Section 198(2) or CrPC which
denies the wife to prosecute her adulterous husband, reserving this power only to the
husband of the woman involved in the relationship. So, in essence a woman can neither
file a case of adultery nor can she be prosecuted under one.

MEMORIAL ON BEHALF OF THE PETITIONER

 STATEMENT OF ISSUES

ISSUE I :

Whether the writ petition filed by Dhormir Dost seeking the compensation for
the violation of fundamental rights brought before this court is maintainable?

ISSUE II :

Whether there has been violation of fundamental rights of the victims?

ISSUE III :

Whether the seizure conducted by the IT officers under Section 69(1) of IT act 2000 and
SO 6227(E) are Legal?

MEMORIAL ON BEHALF OF THE PETITIONER

 SUMMARY OF ARGUMENTS

Issue I : Whether the writ petition filed by Dhormir Dost seeking the compensation for
the violation of fundamental rights brought before this court is maintainable?

It is humbly submitted by Dhormir Dost before the Hon’ble Court that the present PIL is
maintainable. It is further submitted that since there has been gross violation of Article 15,19, and 21
of the Indian constitution, the PIL is maintainable and on account of the same relief is sought.

Issue II : Whether there has been violation of fundamental rights of the victims?

It is humbly submitted by Dhormir Dost before the Hon’ble Court that there has been gross
violation of Article 15,19 and 21 of the Indian constitution.

Issue III : Whether the seizure conducted by the IT officers under Section 69(1) of IT act 2000
and SO 6227(E) are Legal?

It is humbly submitted by Dhormit Dost before the Hon’ble Court that the Seizure conducted
by the Income Tax officers u/s 69(1) of the Information Technology Act 2000 and SO 62279(E) are
illegal as the petitioner has not indulged in any cognizable offence which threaten the interest or
sovereignty of India.

MEMORIAL ON BEHALF OF THE PETITIONER

 ARGUMENTS ADVANCED

I : Whether the writ petition filed by Dhormir Dost seeking the compensation for the
violation of fundamental rights brought before this court is maintainable?

A PIL can be filed against the state for the violation of Fundamental rights (2). Public Function
is one which “seeks to achieve some collective benefit for the public or a section of the public”(6).
Institutions engaged in performing public functions are, by virtueof the functions performed,
government agencies (7). Further under the well-established doctrine of Parens Patrae, it is the
obligation of the state to protect and take into custody of the rights and the privileges of its citizens for
discharging its obligations (8).

The present petition is maintainable under Article 32 of the constitution (1), The petitioner
invokes the writ jurisdiction of the hon’ble Supreme Court of India under Article 32 of the constitution
of India by way of Public Interest Litigation for seeking the compensation of violation of fundamental
rights of victims.

Article 32 makes the Supreme Court the defender and guarantor of the fundamental rights.
Further, power to issue writs comes under original jurisdiction

Article 32 of the Constitution of India which reads as follows

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause ( 2 )

MEMORIAL ON BEHALF OF THE PETITIONER

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution

In the famous Judges Transfer Case (page No.337, JN pandey book), a 7 member bench of the
SC has firmly established the rule regarding the public interest litigation. The court held that any
member of the public having “sufficient interest” can approach the court for enforcing constitutional
or legal rights of other persons and redressal of a common grevence.

In Bandhu Mukti Morcha case (page 343) the supreme court endorsed the statement of J.
Bhagawati :- Art 32 does not merely confer power on the court to issue a direction order or writ for the
enforcement of the fundamental rights but it also lays a constitutional obligation on this court to protect
the fundamental rights of the people and for that purpose this court as all incidental and acillary powers
including to forge new remedies and fashion new strategies designed to enfore fundamental rights. It
is in this realization of this constitutional obligation that this court has innovated new methods and
strategies particularly for enforcing the fundamental rights of the poor and disadvantaged who are
denied their human rights and to whom freedom and liberty have no meaning.

In M. C Metha V. union of india AIR 1987 SC 1086, the supreme court held that the scope of
Art 32 is wide enough to include the power to grant compensation for violation of fundamental rights.
The Court said “ the power of the court to grant such remedial relief may include the power to award
compensation in appropriate cases”. The Approproate cases are those cases where “the infringement
of fundamental right is gross and patent” that is incontroveritable and ex facie glaring and either such
infringement should be on a large scale affecting the fundamental rights of a large number of persons
or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or
socially or economically disadvantaged position to require the person affected by such infringement to
initiate and pursue action in civil courts.

In Rudal Shah V. state of Bihar 1983 4 SCC 141, the court awarded Rs. 30000 as compensation
to the petitioner who had to remain in jail for 14 years because of the irresponsible conduct of the
authorities. Similarly, in Bhim Singh V. State of J&K 1985 4 SCC 677, the petitioner was awarded
compensation of Rs. 50000 for the violation of constitutional rights. In Saheli V Commr of police AIR
1990 SC 513, the court directed the government to pay Rs.75000 as compensation to mother of victim
who died because of beating by police officer.

MEMORIAL ON BEHALF OF THE PETITIONER

 By referring to the above mentioned case Laws, it is humbly submitted that monetary or
pecuniary compensation should be awarded to the victims as their Fundamental rights has been violated
under Article 15,19 and 21 of the Indian constitution and it is the most appropriate and perhaps the
only suitable remedy or redressal of the infringement of Fundamental Rights.

Hence the writ petition filed for seeking the compensation for the violation of fundamental
rights is maintainable

MEMORIAL ON BEHALF OF THE PETITIONER

 II : Whether there has been violation of fundamental rights of the victims?

The LGBT community poses the same human fundamental rights and constitutional rights as
other citizens do since these rights in-here in individuals as natural and human rights. The social
ostracism against LGBT persons prevents them from partaking in all activities as full citizens, and in
turn impedes them from realizing their fullest potential as human beings. The society and the law
enforcement is always seeing these LGBT people as inhuman beings. Owing to the fear of harassment
from law enforcement agencies and prsecution, the LGBT persons tends to stay in the closet. They are
forced not to disclose a central aspect of their personal identity i.e their sexual orientation, both in their
personal and professional spheres to avoid persecution in the society and the opprobrium attached to
homosexuality. Unlike heterosexual persons, they are inhibited from openly forming and nurturing
relationships.

The victims were subjected to force humiliation and threaten to defame and hence the
fundamental rights as guaranteed under Article 21 of the constitution, Article 15 of the constitution
and Article 19 (1) (b) of the constitution have been violated. Therefore there has been a violation of
fundamental rights of the victims.

Violation of Article 21.

Article 21 of the constitution says that: “ No person shall be deprived of his life or personal
liberty except according to procedure established by law”. In Maneka Gandhi (page 222 of JN pande)
case the court gave new dimension to Article 21. It held that the right to live is not merely confined to
physical existence but it includes within its ambit the right to live with human dignity. Elaborating the
same view the court in Francis Coralie V union territory of delhi (page 222) said that the right to live
is not restricted to mere animal existence. It means that something more than just physical survival.
Article 21 is the most precious human right and forms the ark of all other rights (francis Coralie V
union territory of Delhi,),

In Chandra raja kumari V police commissioner Hyderabad (page 222) it has been held that the
right to live includes right to live with human diginity or decency.

In its General Comment No.16, the Human Rights Committee of United Nations confirmed
that any interference with Privacy, even if provided for by law, “should be in accordance with the

MEMORIAL ON BEHALF OF THE PETITIONER

provisions, aims and objectives of the covenant and should be, in any event, reasonable in the particular
circumstances” (supra note 230 at page 6).

The human dignity cannot exist without privacy. In the famous K S Puttaswami & Anr v. Union
of India & Ors case the court recognized that “Dignity cannot exist without privacy. Both reside within
the inalienable values of life, liberty and freedom which the Constitution has recognized. Privacy is
the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles
across the spectrum of fundamental rights and protects for the individual a zone of choice and self-
determination”

The case expands freedom of expression by recognizing privacy as an independently

enforceable right, as opposed to a right that is available only as far as it impacts constitutionally
guaranteed freedoms. This provides for protection of freedom of expression by recognizing rights such
as the right against arbitrary, unregulated State surveillance, the right to express one’s sexual
orientation, religious expression and data protection.

Hence the raid, stripping of cloth and forcefully procuring the personal information’s,
conducted by the police officers were illegal and violation of the fundamental rights guaranteed under
Article 21 – right to live with dignity and right to privacy.

Violation of Article 15 & 19.

Article 19(1)(b) guarantees to all citizens of India right “ to assemble peaceably and without
arms.”

Article 15, guarantees right " Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment;

MEMORIAL ON BEHALF OF THE PETITIONER

 Here Both Article 19(1)(b) and Article 15(1),(2) have been violated by the police officers as
the pride party was held in a hotel peacefully and without any disturbance to the public order, decency
or morality and security of the state.

The LGBT community always comes under the radar of the law enforcement and public. Till
now the society or the establishments accepted them as human beings. Whenever they come together
for a party or any other activity the society or the establishments try to bring them down by various
actions such as Raids, unnecessarily make them strip, threatening, and abusing them.

The Discrimination on the ground of sex under Article 15 includes discrimination on the
ground of gender identity. In national Legal services Authority V union of india, supreme court
recognized the right of transgender persons, to decide their self-identified gender by way of speech,
mannerism, behavior, presentation and clothing etc. In the context of the legal rights of transgender
persons, this court held that sexual orientation and gender identity is an integral part of their
personality.

The J.S Verma Committee (report of the Committee on amendments to criminal law(2013) had
recommended that ‘Sex’ under article 15 must include ‘sexual Orientation’. The prohibiton against
discrimination under Artcile 15 on the ground of ‘Sex’ should be therefore encompass instances where
such discrimination takes place on the basis of ones sexual orientation. ( Human rights committee of
UN in Nicholas Toonen V. Astralia ( communication No. 488/1992, UN Doc
CCPR/C/50/D/488/1992(1994) Article 2, para 1 and article 26 of the International covenant on civil
and political rights)

The LGBT community is a sexual minority which has suffered from unjustified and
unwarranted hostile discrimination and is equally entitled to the protection afforded by Article 15.
Even though the LGBT constitute a sexual minority, members of the community are citizen of this
country who are equally entitled to the enforcement of their fundamental rights guaranteed by Articles
15,19 and 21.

Hence, it is humbly submitted by Dhormir Dost before the Hon’ble Court that there has been
gross violation of Article 15,19 and 21 of the Indian constitution.

MEMORIAL ON BEHALF OF THE PETITIONER

III : Whether the seizure conducted by the IT officers under Section 69(1) of IT act 2000 and
SO 6227(E) are Legal?

The constitutional guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or produce such action.

Section 69 of the Information Technology Act 2000- power to issue directions for interception
or monitoring or decryption of any information through any computer resource :-

(1) Where the Central Government or a State Government or any of its officers specially authorised
by the Central Government or the State Government, as the case may be, in this behalf may, if
satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity of
India, defence of India, security of the State, friendly relations with foreign States or public
order or for preventing incitement to the commission of any cognizable offence relating to
above or for investigation of any offence, it may, subject to the provisions of sub-section (2),
for reasons to be recorded in writing, by order, direct any agency of the appropriate
Government to intercept, monitor or decrypt or cause to be intercepted or monitored or
decrypted any information generated, transmitted, received or stored in any computer resource.

SO 6227(E). - In exercise of the powers conferred by sub-section (1) of section 69 of the Information
Technology Act, 2000 (21 of 2000) read with rule 4 of the Information Technology ( Procedure and
Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, the Competent
Authority hereby authorises the following Security and Intelligence Agencies for the purposes of
interception, monitoring and decryption of any information generated, transmitted, received or stored
in any computer resource under the said Act, namely:—

(i) Intelligence Bureau;

(ii) Narcotics Control Bureau;

(iii) Enforcement Directorate;

(iv) Central Board of Direct Taxes;

MEMORIAL ON BEHALF OF THE PETITIONER

(v) Directorate of Revenue Intelligence;

(vi) Central Bureau of Investigation;

(vii) National Investigation Agency;

(viii) Cabinet Secretariat (RAW);

(ix) Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam
only);

(x) Commissioner of Police, Delhi

The section 69 of the Information Technology Act, 2000 needs to be tested against the
constitutional principles as Prima- Facie it seems to be in violation of Article 14 of the Indian
Constitution as being arbitrary for the reason being that it gives sweeping power to the executives and
is irrational as there is no nexus as to justify having power of such wide magnitude which would result
in impinging upon constitutional protected rights of person with impunity. That by providing such a
wide sweeping power without any safeguard cannot ensure the protection of rights guaranteed by the
constitution and would result in impinging of fundamental rights with impunity. The Secion 69 of IT
Act,2000, purports to do is to impinge upon natural right to privacy that has been recently read to be a
part of the constitution by the constitutional branch og the Hon’ble Supreme Court in Puttaswami Case
(case details) and hence need to be tested against the fundamental rights enshrined in Article
21 specialy right to privacy.

The Above mentioned Section 69(1) of the information technology Act and S.O. 6227(E) Order
sanctions only to seize any computer resource if any activity conducted was against the interest of the
sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign
States or public order or for preventing incitement to the commission of any cognizable offence relating
to above or for investigation of any offence. Here the petitioner has not indulged in any of the offences
so the raid conducted and seizure of 7 computers from the petitioner’s office was illegal as well as
malafide considering the fact that Commissioner of IT is the brother of Sham Kiran

It is humbly submitted before the Hon’ble court that the seizure conducted by the income tax
officers U/S 69(1) of the information technology act 2000 and S.O. 6227(E) are illegal as the petitioner
has not indulged in any cognizable offence which threaten the interest or sovereignty of India.

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER
 PRAYER

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

1. That the writ petition is maintainable and holds the Government of India liable for the violation
of Fundamental rights of the victims.
2. That there has been violation of Fundamental rights of the victims and hold the government of
India liable for the damages and make compensations to the victims
3. That the seizure conducted by the Income tax department officers under the section 69(1) of
IT act 2000 and SO 6227 are illegal.

AND/OR

Pass any other order that it deems fit in the interest of justice, quality and good conscience and for this,
the petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER