CLASS MOOT 2020

IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDIA

IN THE MATTER OF

GAZ FOUNDATION
V.
UNION OF INDIA

WITH

MS. BRIDGET
V.
UNION OF INDIA

WRIT PETITION NO. 983 /2020 & 374/2020

(IN THE MATTER OF ARTICLE 14, 15, 19 & 21 OF THE CONSTITUTION OF INDIA AND SEC. 377
& 497 OF THE INDIAN PENAL CODE, 1860)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIA

COUNSELS FOR THE RESPONDENTS-

1.
2.
3.

MEMORIAL ON THE BEHALF OF THE RESPONDENTS

1
 TABLE OF CONTENTS

S.No CONTENTS PAGE NUMBER

1. List of Abbreviations 3

2. Index of Authorities 4-5

3. Statement of Jurisdiction 6

4. Statement of facts 7-8

5. Issues raised 9

6. Summary of pleadings 10

7. Written Pleadings 11-26

8. Prayer 27

2
 LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Cr. LJ Criminal Law Journal

CRC Convention of the Rights of the Child

F.I.R First Information Report

Govt. Government

Hon‟ble Honourable

i.e. That is

JJ Juvenile Justice

LR Law Report

Ltd. Limited

N.C.T National Capital Territory

3
 INDEX OF AUTHORITIES

STATUTES

 THE CONSTITUTION OF INDIA

 THE INDIAN PENAL CODE
 CRIMINAL PROCEDURE CODE

CASES

1. Hindi Hitrakshak Samiti and Ors. v. Union of India and Ors., 1990 AIR 851
2. Divisional Manager, Arvali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3 JT
221;
3. Government of Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi 2008 (2) 8 JT 639
4. J.P. Bansal v. State of Rajasthan, 2003 (3) SCALE 154.
5. Director of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737: AIR 2007 SC 1640.
6. Parent of a student of Medical College, Shimla v. State of Himachal Pradesh 1985 SC 910
7. Hindi Hitrakshak Samiti and Ors. v. Union of India and Ors., 1990 AIR 851
8. Rishi Malhotra v. Union of India, W.P. (Cri) No. 7/2018, disposed of vide Order dated
02.02.2018.
9. Mylapore Club v. State of Tamil Nadu, (2005) 12 SCC 752, AIR 2007 SC 1077
10. Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873, 891;
11. State of Haryana v. Jai Singh, AIR 2003 SC 1696;
12. Welfare Asson. ARP v. Ranjit P. Gohil, (2003) 9 SCC 358;
13. Javed v. State of Haryana, (2003) 8 SCC 369;
14. Budhan Choudhary & Others v. State of Bihar, AIR 1955 SC 191.
15. K. Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467
16. Basheer alias N.P. Basheer v. State of Kerala, AIR 2004 SC 2757
17. Union of India v. M.V. Valliappan, AIR 1999 SC 2526.
18. Re: The Special Courts Bill v. Unknown, AIR 1979 SC 478.
19. Supreme Court Women Lawyers Assn. (SCWLA) v. Union of India AIR 2016 SC 358.
20. Society for Un-aided Private Schools of Rajasthan v. Union of India, AIR 2012 SC 3445.

4
 21. Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113, (1996)
1 SCC 130
22. Kesavananda Bharati Sripadagalvaru vs. State of Kerala AIR 1973 SC 1461
23. A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
24. Maneka Gandhi v Union of India AIR 1978 SC 597
25. Calvin Francis v. Orissa, 1992 (2) Crimes 455; 1992 (1) OLR 316.
26. Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. AIR 2017 SC 416
27. D.K. Trivedi and Sons v. State of Gujarat, AIR 1986 SC 1323
28. Bibhishan Yadav Deshmukh v State of Maharashtra 1996 Cri LJ 1108.
29. Madan Gopal Kakkad v. Naval Dubey and Ors, 1992 SCC (3) 204.
30. M. Nagaraj v. Union of India, AIR 2007 SC 1
31. General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205.
32. Romesh Thapar v. State of Madras, AIR 1950 SC 124,
33. A.K. Roy v. Union of India, AIR 1982 SC 710,
34. Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
35. Smt. Sowmithri Vishnu v. Union of India & Ors., 1985 AIR 1618, 1985 SCR Supl. (1)
741.

BOOKS AND ARTICLES

1. Ratanlal and Dhirajlal, Commentary on the Indian Penal Code, Justice KT Thomas and
MA Rashid, 35th edition.
2. Basu D.D, Commentary on The Indian Constitution,(Vol. 1, 8th edn, Wadhaw Nagpur
2007)
3. Basu D.D, Constitutional Law of India (8th edn, Lexis Nexis Butterworths Wadhaw
Nagpur 2008)
4. Chemerinsky Erwin, Constitutional Law (2nd edn, Aspen Publishers 2005).

LEGAL DATABASE

 Manupatra
 SCC Online
 Indian Kanoon

5
 STATEMENT OF JURISDICTION

THE PETITIONERS HUMBLY SUBMIT BEFORE THE HON’BLE SUPREME COURT OF

INDICA, THE MEMORANDUM FOR THE APPELLANT UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDICA, 1950 THE HON’BLE SUPREME COURT OF INDICA HAS
JURISDICTION TO TRY THESE CASES UNDER ARTICLE 32 OF CONSTITUTION OF
INDIA, 1950 THROUGH THE WRIT PETITIONS.

6
 STATEMENT OF FACTS

The material case arises of writ petitions filed by Gaz Foundation and Ms Bridget assisted by
Purists group in two different writ petitions challenging two sections of IPC before the Supreme
Court of India. Since both the petitions are pertaining to single topic of homosexuality, it has
been decided to hear it as a clubbed matter before this hon’ble court.

Mr Walden is a 38 year old struggling theatre artist in the republic of Indica. He got married to
Ms. Bridget, a 23 year old world renowned actress in a public ceremony on 12.01.2016. Social
media, newspaper articles and various electronic media houses wrote articles suggesting that Ms
Bridget “deserved better.” Mr Bridget took to social media to claim that she has found her “true
love” and requested fans to support her “quest for ultimate happiness.” Since then the couple
have been posting every milestone of their relationship on social media.

After 6 months the posts gradually with Ms Bridget using twitter exclusively to post lyrics from
old songs seemingly suggesting that she was unhappy.

On 24.10.2017, at 5 pm, an electronic media house Spice-Bridge Publications (co-founded and

owned by Ms. Bridget) published an article titled “The Secret Shenanigans of Walden.” The
article alleged that Mr. Walden is gay and has had homosexual relationships with many artists.
The article condemned homosexuality as a sin against God and as well as a crime.

Mr Walden was attacked by a group of men and suffered injuries. He the filed an FIR against
unknown persons about the assault. An FIR was also registered against Mr Walden by Mr. Alan,
under Section 377 of the Indica Penal Code. Mr Walden filed a defamation suit for Rs 1 crore
against Ms Bridget and Spice Bridge Publications.

The above controversy motivated “Gaz Foundation” a renowned human rights and LGBT rights
activists group, to file a writ petition before Supreme Court of Indica challenging the
constitutional validity of Section 377 IPC on the ground of it being violative of Article 14, 19
and 21 of the Constitution of Indica and in the light of a recent judgment rendered by a 9-judge
bench of the Supreme Court of Indica that recognized right to privacy as a fundamental right.

7
Meanwhile, Ms Bridget assisted by the Purists Group also filed a petition challenging Section
497 IPC on the ground of it being violative of Article 14 of the Constitution of Indica as it
doesn’t prosecute Homosexual Adultery.

The Hon’ble Supreme Court of Indica decided to hear both the petitions together as they pertain
to homosexuality.

8
 ISSUES RAISED

ISSUE I

WHETHER BOTH THE WRIT PETITIONS ARE MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT?

ISSUE II

WHETHER SECTION 377 IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF THE

CONSTITUTION OF INDICA AND THUS SHOULD BE DECLARED
UNCONSTITUTION AND ULTRA VIRES OF THE CODE?

ISSUE III

WHETHER HOMOSEXUALS COULD BE CONSIDERED AS THIRD GENDER AND

THUS CAN HOMOSEXUAL ADULTERY BE PENALIZED?

9
 SUMMARY OF PLEADINGS

ISSUE I- WHETHER BOTH THE WRIT PETITIONS ARE MAINTAINABLE BEFORE

THE HON’BLE SUPREME COURT?

It is submitted that the present writ petitions are not maintainable as the subject matter of the writ
petitions are sub – judice before this Hon’ble Court. Furthermore, the judiciary has no say in
policy decisions of the legislative authority.

ISSUE II WHETHER SECTION 377 IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF

THE CONSTITUTION OF INDICA AND THUS SHOULD BE DECLARED
UNCONSTITUTION AND ULTRA VIRES OF THE CODE?

Section 377 of the Indian Penal Code, 1860 has been enacted to protect the public morality.
Section 377 is not violative of Article 14 of the Constitution as the said section created an
intelligible differentia between ‘carnal intercourse within the order of nature’ and ‘carnal
intercourse against the order of nature’. Moreover, Section 377 does not violate Article 19 as the
same is protected by the reasonable restriction of public morality which can be imposed on the
freedoms guaranteed under Article 19(1). Furthermore, Section 377 is not violative of Article 21
as there is a ‘procedure established by law’ for prosecution of any person accused of the said
crime. Section 377 is also not violative of right to privacy since there is public morality is a
legitimate aim and Section 377’s interference is proportional to the need of interference.

ISSUE III WHETHER HOMOSEXUALS COULD BE CONSIDERED AS THIRD

GENDER AND THUS CAN HOMOSEXUAL ADULTERY BE PENALIZED?

The essential ingredient of Section 497 of the Indian Penal Code, 1860 is sexual intercourse
which has been defined to mean penile – vaginal intercourse. Hence, the same does not cover
homosexual activities. Moreover, keeping in mind the legislative history of the section and the
reasonable classification it creates, it is not violative of Article 14 of the Constitution.

10
 WRITTEN PLEADINGS
ISSUE I- WHETHER BOTH THE WRIT PETITIONS ARE MAINTAINABLE BEFORE
THE HON’BLE SUPREME COURT?

It is humbly submitted that the writ petition is non maintainable.

JUDICIARY HAS NO SAY IN POLICY DECISIONS OF THE LEGISLATIVE

AUTHORITY: It is submitted that the Court cannot interfere in matters of Legislative policy.1
The Court must maintain judicial restraint in matters relating to the legislative or executive
domain.2 In the case of State (Govt of NCT of Delhi) v. Prem Raj3, the Court held that:

“Where the words are clear, there is no obscurity, there is no ambiguity and the intention of the
legislature is clearly conveyed, there is no scope for the court to innovate or to take upon itself
the task of amending or altering the statutory provisions. In that situation the judge should
proclaim that they are playing the role of lawmaker merely for an exhibition of judicial valour.
They have to remember that there is a line, though thin, which separates adjudication from
legislation. That line should not be crossed or erased.”4

The decision of a seven-Judge Bench of this Court in P. Ramachandra Rao v. State of

Karnataka5 has recognized the limits of judicial power in a constitutional democracy, and in
Union of India and Another v. Deoki Nanadan Aggarwal6 it was held that courts cannot rewrite,
recast or reframe the legislation for the very good reason that it has no power to legislate. The
Supreme Court has reiterated in multiple judgements that the Courts cannot act as an Appellate
Authority and examine the correctness, suitability and the appropriateness of a policy or are
courts advisors to the executive on matters of policy which the executive is entitled to formulate.
The judicial review in this area is only limited to the examination as to whether any Fundamental
Rights have been violated or its opposed to the provisions of the Constitution or any statutory

1
Hindi Hitrakshak Samiti and Ors. v. Union of India and Ors., 1990 AIR 851
2
Divisional Manager, Arvali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3 JT 221; Government of
Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi 2008 (2) 8 JT 639
3
(2003) 7 SCC 121
4
J.P. Bansal v. State of Rajasthan, 2003 (3) SCALE 154.
5
(2002) 4 SCC 578.
6
(1992 Supp. (1) SCC 323

11
provision or is manifestly arbitrary.7 The Court cannot simply usurp the Constitution and it
cannot even indirectly require the executive to introduce a particular legislation or the legislature
to pass it or assume to itself a supervisory role over the law making activities of the executive
and the legislature.8

Therefore, it is submitted that if the governance is illegal or violative of rights and obligations,
other questions may arise out whether, as mentioned hereinbefore, it has to be a policy decision
by the Government or the authority and thereafter enforcement of that policy, the Court should
not be, and we hope would not be an appropriate forum for the decision.9 The same has been
held by the seven-Judge Bench in P. Ramachandra Rao v. State of Karnataka:

“Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill
the gaps, but they cannot encroach upon in the field of legislation properly meant for the
legislature.”

It is further submitted that in a similar petition filed by Adv. Rishi Malhotra for making laws
pertaining to rape, sexual harassment, stalking, voyeurism, outraging the modesty, etc. gender
neutral, this Hon’ble Court while disposing of the PIL observed that it is the duty of the
Parliament to amend the policy and the Court cannot even direct the collection of data. 10
Challenge on the ground of wisdom of legislation is not permissible as it is for the legislature to
consider.11

Since in the present case there is absolutely no legal wrong, thus there can be no question of any
remedy following the Latin maxim ubi jus ibi remedium. Thus, it is submitted that the writ
petitions are not maintainable and should be dismissed.

7
Director of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737: AIR 2007 SC 1640.
8
Parent of a student of Medical College, Shimla v. State of Himachal Pradesh 1985 SC 910
9
Hindi Hitrakshak Samiti and Ors. v. Union of India and Ors., 1990 AIR 851
10
Rishi Malhotra v. Union of India, W.P. (Cri) No. 7/2018, disposed of vide Order dated 02.02.2018.
11
Mylapore Club v. State of Tamil Nadu, (2005) 12 SCC 752, AIR 2007 SC 1077

12
ISSUE II WHETHER SECTION 377 IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF
THE CONSTITUTION OF INDICA AND THUS SHOULD BE DECLARED
UNCONSTITUTION AND ULTRA VIRES OF THE CODE?

It is submitted that Section 377 which reads as follows:

“Sec 377. Unnatural offences — Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with 1[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.

Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the

offence described in this section.” and is not violative of Articles 14, 19 and 21 of the
Constitution.

SECTION 377 IS NOT VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION: Article

14 forbids class legislation; it does not forbid reasonable classification of persons, objects and
transactions by the Legislature for the purpose of achieving specific ends. Classes to be
reasonable should fulfil the following two tests:

(1) It should not be arbitrary, artificial or evasive. It should be based on an intelligible

differentia, some real and substantial distinction, which distinguishes persons or things grouped
together in the class from others left out of it.

(2) The differentia adopted as the basis of classification must have a rational or reasonable nexus
with the objects sought to be achieved by the statute in question.12

Section 377 merely defines a particular offence and its punishment. The State has the power of
determining who should be regarded as a class for the purpose of legislation and in relation to a
law enacted on a particular subject. Supreme Court has observed in K. Thimmappa v. Chairman,
Central Board of Directors:13

12
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873, 891; State of Haryana v. Jai Singh, AIR 2003 SC
1696; Welfare Asson. ARP v. Ranjit P. Gohil, (2003) 9 SCC 358; Javed v. State of Haryana, (2003) 8 SCC 369;
Budhan Choudhary & Others v. State of Bihar, AIR 1955 SC 191.
13
K. Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467

13
“To attract the operation of the clause it is necessary to show that the selection or differentiation
is unreasonable or arbitrary, that it does not rest on any rational basis having regard to the object
which the legislature has in view.”

It is submitted that Section 377 IPC only makes a classification on the basis:

A. Carnal Intercourse within the order of nature

B. Carnal Intercourse against the order of nature.

This is a reasonable classification and is on an intelligible differentia which distinguishes persons

that are grouped together. This differentia has a rational basis to the object of prosecuting
offenders under the Penal Code who commit an offence by going against the nature and affecting
the human body. Additionally, Marginal over inclusiveness or under inclusiveness, will not
vitiate the classification.14 Hence, such differentiation is not discriminatory and does not violate
the principle of Article 14 of the Constitution since there is rational nexus on the basis of which
the differentiation has been made with the object sought to be achieved by this particular
provision.15 Furthermore, it is submitted that the Courts should not insist on delusive exactness
or apply doctrinaire tests for determining the validity of classification in any given case.
Classification is justified if it is not palpably arbitrary and the law can make and set apart the
classes according to the needs and exigencies of the society and as suggested by experience. It
can recognise even degree of evil, but the classification should never be arbitrary, artificial or
evasive.16 It is submitted that the above-mentioned classification is required, to prosecute in
situations where carnal intercourse against the order of nature is committed against man, woman
or animal. The State has an imminent interest in prosecuting all the offenders who have
committed carnal intercourse against the order of nature. The Court should not venture to
interpret what is the ‘order of nature’ or ‘an unnatural offence’ because this would lead to the
watering down of the Sec. 377 and prosecutions related to acts which fall under Sec. 377 IPC.

Secondly, it is submitted that there is no classification on the basis of consent that is consensual
carnal intercourse against the order of nature and non-consensual carnal intercourse against the

14
Basheer alias N.P. Basheer v. State of Kerala, AIR 2004 SC 2757
15
Union of India v. M.V. Valliappan, AIR 1999 SC 2526.
16
Re: The Special Courts Bill v. Unknown, AIR 1979 SC 478.

14
order of nature, since defence of consent is not available to Section 377 by virtue of Section 91
of Indian Penal Code, 1860. Section 91 reads as:

“91. Exclusion of acts which are offences independently of harm caused. —The exceptions in
sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which
they may cause, or be intended to cause, or be known to be likely to cause, to the person giving
the consent, or on whose behalf the consent is given’.

Illustration- Causing miscarriage (unless caused in good faith for the purpose of saving the life of
the woman) is an offence independently of any harm which it may cause or be intended to cause
to the woman.

Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her
guardian to the causing of such miscarriage does not justify the act.”

It says in explicit terms that consent will only condone the act causing harm to the person giving
the consent which will otherwise be an offence. Acts which are offences independently of any
harm which they may cause will not be covered by consent given under Sections 87, 88 and 89
of the IPC.

Therefore, since section 377 IPC criminalizes an act independent of any harm, the general
defence of consent is not available.

The act voluntarily done in effect and substance means (a) act done intentionally (b) act done
with the knowledge of end result being a crime; (c) act done when the doer had reason to believe
that the actus reus would be an offence.17 The fundamental principle of criminal liability is that
there must be a wrongful act – actus reus, combined with a wrongful intention – mens rea.
Voluntary is a word by which the doctrine of mens rea is incorporated18 into section 377 just like
other words such as ‘intentionally’, ‘knowingly’, ‘voluntarily’, ‘fraudulently’, ‘dishonestly’ etc.
which are used to signify the state of mind required for commission of particular offences and
thus, incorporate the doctrine of mens rea. Therefore, it is submitted that a blanket declaration
that carnal intercourse against the order of nature between consenting adults should be taken out

17
Ibid
18
KD Gaur, Commentary on Indian Penal Code (Universal Law Publishing Co., 2006 edn.).

15
of the purview of Section 377 should not be given, since Section 377 does not provide for
consent. The general defence of consent is not available and inclusion of consent would amount
to judicial legislation which is not permissible according to the settled law.

Additionally, it submitted that the word ‘voluntarily’ does not mean consent. Voluntarily has
been defined in Section 39 of India Penal Code, 1860 as: “A person is said to cause an effect
"voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at
the time of employing those means, he knew or had reason to believe to be likely to cause it.”

Moreover, in the case of Supreme Court Women Lawyers Assn. (SCWLA) v. Union of India19, the
Supreme Court held:

“At the very outset, we must make it clear that the courts neither create offences nor do they
introduce or legislate punishments. It is the duty of the legislature. The principle laid down in
Vishaka case is quite different, for in the said case, the Court relied on the International
Convention, namely, “Convention on the Elimination of All Forms of Discrimination against
Women” especially articles pertaining to violence and equality in employment and further
referred to the concept of gender equality including protection from sexual harassment and right
to work with dignity and on that basis came to hold that in the absence of enacted law to provide
for effective enforcement of the basic human right of gender equality and guarantee against the
sexual harassment and abuse, more particularly against sexual harassment at work places,
guidelines and norms can be laid down in exercise of the power under Article 32 of the
Constitution, and such guidelines should be treated as law declared under Article 141 of the
Constitution.

The following passage from the said authority makes the position clear: ...The international
conventions and norms are to be read into them in the absence of enacted domestic law
occupying the field when there is no inconsistency between them. It is now an accepted rule of
judicial construction that regard must be had to international conventions and norms for
construing domestic law when there….”

SECTION 377 IS NOT VIOLATIVE OF ARTICLE 19 OF THE CONSTITUTION.

19
Supreme Court Women Lawyers Assn. (SCWLA) v. Union of India AIR 2016 SC 358.

16
Clauses (a) to (g) of Article 19 (1) of the Constitution guarantee to the citizens of India six
freedoms viz of ‘speech and expression, ‘peaceful assembly’, ‘association’, ‘free movement’,
‘residence’ and ‘practicing any profession and carrying on any business’. However, the freedoms
guaranteed under Article 19(1) are not absolute. Each of these rights is liable to be controlled,
curtailed and regulated to some extent by laws made by the Parliament or the State Legislature.

Accordingly, clauses (2) to (6) of Article 19 lay down the grounds and the purposes for which a
Legislature can impose ‘reasonable restrictions’ on the rights guaranteed by Article 19(1)(a) to
(g). The court is not concerned with the necessity of the impugned legislation or the wisdom of
the policy underlying it, but only whether the restriction is in excess of the requirement and
whether the law has overstepped the Constitutional limitations.20

Firstly, it is submitted that Section 377 IPC does not impact upon the freedom under Article
19(1) as what is criminalised is only a sexual act independent of the sex of the person or sexual
orientation. It is a wrong assumption sexual orientation can be naturally demonstrated only in a
way as contemplated in Section 377 of the IPC. Secondly, as per Article 19 (2):

“Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent
the State from making any 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 sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an offence”

It is submitted that Section 377 even if presumed to infringe the freedom of speech and
expression, it is a reasonable restriction in the interests of decency and morality. In Dr. Ramesh
Yeshwant Prabhoo v. Prabhakar Kashinath Kunte21 the Supreme Court has given somewhat
wider meaning to the term ‘decency’ and ‘morality’. The Court has maintained that ‘decency’ or
‘morality’ is not confined to sexual morality alone. The ordinary dictionary meaning of
‘decency’ indicates that the action must be in conformity with the current standards of behaviour
or propriety.

20
Society for Un-aided Private Schools of Rajasthan v. Union of India, AIR 2012 SC 3445.
21
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113, (1996) 1 SCC 130

17
The Court has cited with approval the following observation from an English case:22

" ...... Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short
of saying that it includes anything which an ordinary decent man or woman would find to be
shocking, disgusting and revolting...."

It is submitted that morality in Article 19(2) refers to ‘public morality’ and not refers to
constitutional morality. The restriction contemplated in the interest of ‘morality’ has always
understood as ‘public morality’ and not ‘constitutional morality’.

“The further argument that fundamental rights are inalienable natural rights and, therefore,
unamendable so as to abridge or take them away does not stand close scrutiny. Articles 13 and
32 show that they are rights which the people have "conferred" upon themselves. A good many
of them are not natural rights at all. Abolition of untouchability (Article 17), abolition of titles
(Article 18); protection against double jeopardy (Article 20(2)); protection of children against
employment in factories (Article 24); freedom as to attendance at religious instruction or
religious worship in certain educational institutions (Article 28) are not natural rights. Nor are all
the fundamental rights conceded to all as human beings. The several freedoms in Article 19 are
conferred only on citizens and not non-citizens. Even the rights conferred are not in absolute
terms. They are hedged in and restricted in the interest of the general public, public order, public
morality, security of the State and the like which shows that social and political considerations
are more important in our organized society. Personal liberty is cut down by provision for
preventive detention which, having regard to the conditions prevailing even in peace time, is
permitted. Not a few members of the constituent assembly resented the limitations on freedoms
on the ground that what was conferred was merely a husk. Prior to the Constitution no such
inherent inalienability was ascribed by law to these rights, because they could be taken away by
law.”23

It is submitted that the present subject is relating to policy of law rather than that of its legality,
which can be seen in the reports of Law Commission of India. In the 42nd report of the
Commission, it was observed that Indian society by and large disapproved of homosexuality, and

22
Knuller (Publishing, Printing and Promotions) Ltd. v. Director of Public Prosecutions, [1972] 2 All ER 898
23
Kesavananda Bharati Sripadagalvaru vs. State of Kerala AIR 1973 SC 1461

18
such disapproval is strong enough to justify it being treated as a criminal offence even where the
adults indulge in it in private. It is submitted that law cannot run separately from the society
since it only reflects the perception of the society. It is submitted that Section 377 IPC is only
responding to the values and morals of the time in the Indian society. Since, homosexuality still
remains remains pathologized on the religious and social spectrum, section 377 is a valid
restriction on freedom of speech and expression in the interest of decency and morality.

SECTION 377 IS NOT VIOLATIVE OF ARTICLE 21 OF THE CONSTITUTION. Article

21 of the Constitution reads as:

“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”

Article 21 provides that the right to life and liberty is subject to procedure prescribed by law.24 In
Maneka Gandhi v Union of India25, the Hon’ble Supreme Court held that Arts. 14, 19 and 21 are
not mutually exclusive. This means that a law prescribing a procedure for depriving a person of
‘personal liberty’ has to meet the requirements of Art. 19 and Art. 14. Thus, the procedure in Art.
21, “must be ‘right and just and fair’ and not arbitrary, fanciful or oppressive, otherwise, it would
be no procedure at all and the requirement of Art. 21 would not be satisfied”. Section 4 of the
Code of Criminal Procedure Act, 1973 provides “All offences under the Indian Penal Code(45 of
1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the
provisions hereinafter contained.”

Thus, CrPC prescribes a fair procedure before any person committing an offence u/s 377 IPC
can be punished. Further, courts have come forward and held that

“In order to attract culpability u/s 377, it has to be established that: The accused had carnal
intercourse with man, woman or animal, such intercourse was against the order of nature, the act
of the accused was done voluntarily, and there was penetration.”26

It is submitted that a well-established Code has been implemented to deal with criminal
complaints. No individual is convicted of an offence based on mere allegations. Even an

24
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
25
Maneka Gandhi v Union of India AIR 1978 SC 597
26
Calvin Francis v. Orissa, 1992 (2) Crimes 455; 1992 (1) OLR 316.

19
allegation or a complaint under Section 377 is followed up in the manner prescribed in the CrPC.
The offence under Section 377 is cognizable, non bailable and triable by the Magistrate of the
First Class. The trial held by the Magistrate of the First Class is guided by Sections 190 – 210 of
the CrPC. Moreover, there is a presumption of innocence of the accused till proven guilty and the
burden of proof is on the prosecution. The prosecution has to prove the case under Section 377
beyond reasonable doubt using the principles enshrined in the Indian Evidence Act, 1872. The
State intervenes only when a public-spirited person files a complaint against the offending party
(the accused). Therefore, it is submitted that the procedure for prosecution under section 377 of
IPC does not violate either the test of Arbitrariness under Article 14 or the test of Reasonableness
under Article 19, hence by the principle laid down, it does not violate Article 21.

Section 377 does not violate right to privacy- Paragraph 3 of the operative Order of Justice
K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. 27
states that “the right to privacy is
protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part
of the freedoms guaranteed by Part III of the Constitution.”

Paragraph 4 continues: “Decisions subsequent to Kharak Singh which have enunciated the
position in (iii) above lay down the correct position in law.”

Therefore, it is submitted that pparagraphs 3 and 4 of the Operative Order, read together,
preserve both the Court’s limitations jurisprudence that it has developed for fundamental rights
such as Articles 14, 19, and 25 (which cover facets of privacy), as well as the more rigorous
jurisprudence that it has specifically developed for privacy under Article 21. To explain the
limitation jurisprudence in the words of Justice Chandrachud, writing the plurality opinion,

“a law which encroaches upon privacy will have to withstand the touchstone of permissible
restrictions on fundamental rights.”51 To the extent that a privacy claim is grounded in a right
other than Article 21 of the Constitution (such as Article 14, or 19(1), or 25), its validity will be
tested on the basis of established, existing jurisprudence on the limitations of those rights, there
is harmony in all the opinions of the Hon’ble Judges. It is submitted that there is split on the
meaning of rigorous variant of standard that the court has developed specifically for privacy
under Article 21.

27
Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. AIR 2017 SC 416

20
For Justice Bobde, for instance, read the “just, fair, and reasonable” standard under Article 21 as
requiring only a showing by the State that its law was “rational”.

Justice Sapre provided his own articulation, laying down a standard of “social, moral and
compelling public interest in accordance with law.” Justice Nariman did not articulate any
separate standard under Article 21. Justice Chelameswar, most clearly recognised the distinction
between a standard “just, fair, and reasonable” test, and the “compelling State interest” test –
which he called “the highest standard of scrutiny that a Court can adopt.”

He noted that: “The just, fair and reasonable standard of review under Article 21 needs no
elaboration. It has also most commonly been used in cases dealing with a privacy claim hitherto.

Gobind resorted to the compelling state interest standard in addition to the Article 21
reasonableness enquiry. From the United States where the terminology of ‘compelling state
interest’ originated, a strict standard of scrutiny comprises two things- a ‘compelling state
interest’ and a requirement of ‘narrow tailoring’ (narrow tailoring means that the law must be
narrowly framed to achieve the objective).

As a term, compelling state interest does not have definite contours in the US. Hence, it is critical
that this standard be adopted with some clarity as to when and in what types of privacy claims it
is to be used. Only in privacy claims which deserve the strictest scrutiny is the standard of
compelling State interest to be used. As for others, the just, fair and reasonable standard under
Article 21 will apply. When the compelling State interest standard is to be employed must
depend upon the context of concrete cases.

21
ISSUE III WHETHER SECTION 497 IS UNCONSTITUTIONAL AND HOMOSEXUAL
ADULTERY BE PENALIZED?

It is most humbly submitted by the Respondent that Section 497 of the Indian Penal Code, 1860
is constitutional, being non – violative of Article 14 of the Constitution of India. The Petitioner
has challenged the vires of Section 497 of the Indian Penal Code, 1860 on the ground that the
non-inclusion of homosexual adultery is violative of Article 14 of the Constitution of India.
Article 14 espouses non-arbitrariness of classification and compliance with the principles of
natural justice. It is necessary that the offence is harmoniously construed with the principles
envisaged in the Constitution, in consonance with the legislative intent.

THE LEGISLATIVE HISTORY IS ESSENTIAL FOR UNDERSTANDING THE

CONSTITUTIONALITY OF THE ACT. In the present case, it is essential to understand the
background and the legislative intent behind the enactment of Section 497 of the Indian Penal
Code, 1860 to decide on its constitutional validity. The object of the legislation can be gleaned
only from appreciating the need for the impugned legislation. The intent is an essential feature
for adjudicating on the constitutionality of a Section, to ensure synergy between the Judiciary
and the Legislature regarding the enactment.28
The need for Section 497 of the Indian Penal Code, 1860- The framers of the Code did not
make adultery an offence punishable under the Code because:
"It seems to us that no advantage is to be expected from providing a punishment for adultery.
The population seems to be divided into two classes - those whom neither the existing
punishment nor any punishment which we should feel ourselves justified in proposing will
satisfy, and those who consider the injury produced by adultery as one for which a pecuniary
compensation will sufficiently atone. Those whose feelings of honour are painfully affected by
the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less
delicate will be satisfied by a payment of money. Under such circumstances, we think it best to
treat adultery merely as a civil injury.”29

28
D.K. Trivedi and Sons v. State of Gujarat, AIR 1986 SC 1323
29
Law Commission of India, 42nd Report on Indian Penal Code,1860 (1971) at pp. 20.13 cited Macaulay's Draft
Penal Code (1837), Notes-Note Q, pp. 90-93.

22
Nature of the Offence- This Section defines an offence against marriage in the following terms:
“Adultery- 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...”
The Bombay High Court in Bibhishan Yadav Deshmukh v State of Maharashtra30 has defined the
nature of adultery as: “For any husband, specially a Hindu, there can be no graver and more
sudden and shocking provocation than to find his wife in a compromising position with someone
else. Adultery is a breach of carnal obligations of marriage and continence and fidelity are the
bed-rock on which any marriage is founded. Words are incapable of extolling their value.” The
above view validates the fact that the said Section which deals with the offence against marriage
is integral to prevent the deterioration of the sanctity of marriage and marital bonds of persons in
the country. Section 497 purports, safeguards and protects the institution of marriage. It is
submitted that striking down Section 497 of the IPC and Section 198(2) of the CrPC will be
detrimental to intrinsic Indian ethos that give paramount importance to the institution and
sanctity of marriage. It is therefore submitted that de-criminalising adultery will destroy the
institution of marriage in the country like India, where marriages are considered as a divine
sanctity.

APPLICATION OF SECTION 497 DOES NOT EXTEND TO SAME SEX CONDUCT

It is most humbly submitted before this Hon’ble Court that the section 497 of the IPC does not
apply in cases of same-sex conduct as the gravamen of the offence is consensual sexual
intercourse by a man with a woman (who is believed to be the wife of another man).
That sexual intercourse as envisaged in the Section 497 requires sexual intercourse between
two people of the opposite sex- The term ‘sexual intercourse’ has not been defined under
Section 497 of the IPC. The jurisprudence of the term ‘sexual intercourse’ is propounded with
respect to rape laws. Therefore, it is submitted that this Hon’ble Court will have to look at the
other sources of statutory or precedents to determine whether the term is a blanket one that
covers all forms of sexual activity or whether it is limited to something narrower. The High

30
Bibhishan Yadav Deshmukh v State of Maharashtra 1996 Cri LJ 1108.

23
Court of Kerala in State of Kerala v Kundumkara Govindam 31, defined sexual intercourse as:
“By a metaphor the word intercourse, like the word commerce, is applied to the relations of the
sexes. Here also there is the temporary visitation of one organism by a member of the other
organization, for certain clearly defined and limited objects. The primary object of the visiting
organization is to obtain euphoria by means of a detent of the nerves consequent on the sexual
crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the
visited organism, for intercourse connotes reciprocity.”
In Parikh's Textbook of Medical Jurisprudence and Toxicology, the definition of sexual
intercourse is as follows: “Sexual intercourse: In law, this term is held to mean the slightest
degree of penetration of the vulva by the penis with or without emission of semen.”32 The plain
and ordinary meaning of sexual intercourse is “sexual connection esp. between humans: Coitus
Copulation.”33 Coitus is defined to require “insertion of the penis in the vagina”34, which clearly
can only take place between persons of the opposite gender.
Thus, the various sources of the definition of sexual intercourse have defined it with respect to
penile-vaginal intercourse only and the only possible way to have penile – vaginal intercourse is
if the sexual intercourse is between opposite sexes. Therefore, it can be gathered that the
definition of adultery only includes sexual intercourse between opposite sex and not same sex.
Thus, the very first and most important ingredient of sexual intercourse is not fulfilled in the case
of homosexual intercourse.
SECTION 497 OF THE CODE IS NOT VIOLATIVE OF ARTICLE 14. Article 14 of the
Constitution espouses non-arbitrariness of classification and compliance with the principles of
natural justice.35 Reasonable classification is the test for the applicability of Article 14. Keeping
this fundamental in consideration, the vires of Section 497 shall be proved hereunder. It is
pertinent to mention that Article 14 bars discrimination and prohibits discriminatory law, but
equality cannot be guaranteed when it arises out of an illegality.36 The ‘void for vagueness’
principle is an extension of Article 14.37 It only prohibits laws that fail either to give proper

31
1969 Cri LJ 818
32
Madan Gopal Kakkad v. Naval Dubey and Ors, 1992 SCC (3) 204.
33
Philip Babcock Gove (ed.), Webster’s Third New International Dictionary 2082 (Merriam-Webster, 1993)
34
Ibid
35
M. Nagaraj v. Union of India, AIR 2007 SC 1
36
General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205.
37
Romesh Thapar v. State of Madras, AIR 1950 SC 124, A.K. Roy v. Union of India, AIR 1982 SC 710, Kartar
Singh v. State of Punjab, (1994) 3 SCC 569.

24
notice to regulate parties or to meaningfully limit the discretion of their enforcers. It is only when
there is no discernible reasonable principle for the manner in which to act, for adopting a
procedure, that a particular action or legislation may be labelled ‘arbitrary’.74 Moreover, Section
497 has stood the test of constitutionality in the landmark cases of W. Kalyani, V Revathi, Smt.
Sowmithri Vishnu v. Union of India75 , Yusuf Abdul Aziz v. State76 and Yusuf Aziz v. State of
Bombay77 that section 497 of the IPC is not violative of right to equality enshrined under Article
14 of the Indian Constitution. Homosexuals and heterosexuals engaging in the same acts are
treated the same because our interpretation of the term "adultery" excludes all non-coital sex
acts, whether between persons of the same or opposite gender. The only distinction is that
persons of the same gender cannot, by definition, engage in the one act that constitutes adultery
under the statute. Thus, under Section 497 the definition is only restricted to “sexual intercourse”
only meaning thereby that the intention of the Legislature is only to include sexual activity
between opposite sex.

THE PETITIONER’S ARGUMENT GOES TO THE POLICY OF THE LAW RATHER

THAN IMPLEMENTATION OF LAW It is submitted that the sexual intercourse in any form
between a man with another man would not fall within the definition of adultery and would
therefore not constitute adultery.
It goes to the policy of the Law rather than the implementation of law and therefore, the court is
not empowered to legislate. As noted above, the concept of adultery was premised upon a
specific act. To include in that concept other acts of a sexual nature, whether between
heterosexuals or homosexuals, would change beyond recognition this well-established ground
for divorce and likely lead to countless new marital cases alleging adultery, for strategic
purposes.
In any event, “it is not the function of the judiciary to provide for present needs by an extension
of past legislation.”
Assuming that the situation has undergone changes since the inception of this provision in the
Penal Code, it is therefore the Legislature to consider whether section 497 should be amended
appropriately so as to take note of the ‘transformation’ which the society has undergone. The
legislature is required to deal with diverse problems arising out of an infinite variety of human
relations. It must, therefore, necessarily have the power of making laws to attain particular
objects and, for that purpose, distinguishing, selecting and classifying persons and things upon
25
which its laws is to operate. The argument that the definition should be recast by extending the
ambit of the offence of adultery so as to include both the man and the woman in a homosexual
relationship should be punishable for the offence of adultery. If this argument is to be accepted,
several penal laws may have to be struck down on the ground that, either in their definition or in
their prescription of punishment, they do not go far enough. In the case of Smt. Sowmithri
Vishnu Case38, where the extension of the ambit of the definition of adultery was considered, the
court while upholding the argument gave the example of offence of robbery that it is punishable
for ten years under Section 392 of IPC but is only punishable with a sentence of five years only:
‘Breaking a matrimonial home is not less serious crime than breaking open a house’. Such
arguments about extending the definition goes to the policy of the law, and not to its
constitutionality. It is therefore submitted that in defining the offence of adultery so as to restrict
the class of offenders to men involved in heterosexual relations, no constitutional provision is
infringed. Therefore, Section 497 is not violative of Article 14 of the Constitution of India.

38
Smt. Sowmithri Vishnu v. Union of India & Ors., 1985 AIR 1618, 1985 SCR Supl. (1) 741.

26
 PRAYER

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

1. Declare that the present writ petitions are not maintainable and should be dismissed;
2. Declare that Section 377 of the Indian Penal Code is not violative of Articles 14, 19 and 21 of
the Constitution;
3. Declare that Section 497 of the Indian Penal Code, 1860 is Constitutional.

And pass any such order, other order that it deems fit in the interest of Justice, Equity
and Good Conscience.

And for this, the Respondent as in duty bound, shall humbly pray.

Sd/-

COUNSEL ON BEHALF OF THE RESPONDENTS

27