In The Case Concerning Right To Privacy, Homosexuality As A Crime and Extortion
In The Case Concerning Right To Privacy, Homosexuality As A Crime and Extortion
In The Case Concerning Right To Privacy, Homosexuality As A Crime and Extortion
Writ Jurisdiction
IN THE MATTER OF
XYZ…………………………..Petitioner
V
Union Of Indicia………….. Respondent
To
Table of Contents
INDEX OF AUTHORITY
Cases
S.P. Gupta vs. Union of India (UOI) and Ors. (30.12.1981 - SC) : MANU/SC/0080/1981…1
Janata Dal vs. H.S. Chowdhary and Ors. (28.08.1992 - SC) : MANU/SC/0532/1992………..1
Bandhua Mukti Morcha vs. Union of India (UOI) and Ors. (13.08.1991 - SC) :
MANU/SC/0618/1991…………………………………………………………………………1
Kavalappara Kottarathil and Kochunni vs. States of Madras and Kerala and Ors. (04.05.1960
- SC) : MANU/SC/0366/1960…………………………………………………………………2
Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty 1996 AIR 922, 1996 SCC (1) 490…2
I. C. Golaknath & Ors vs State Of Punjab & Anrs. 1967 AIR 1643, 1967 SCR (2) 762……..2
Ajay Hasia and Ors. vs. Khalid Mujib Sehravardi and Ors. (13.11.1980 - SC) :
MANU/SC/0498/1980…………………………………………………………………………2
Gramvikas Shikshan Prasarak Mandal, Sondoli vs. The State of Maharashtra and Ors.
(11.04.2000 - BOMHC)………………………………………………………………………3
Kharak Singh vs. The State of U.P. and Ors. (18.12.1962 - SC) : MANU/SC/0085/1962….3
Bhavesh Jayanti Lakhani vs. State of Maharashtra and Ors. (07.08.2009 - SC) :
MANU/SC/1410/2009………………………………………………………………………..3
Maneka Gandhi vs. Union of India (UOI) and Ors. (25.01.1978 - SC) :
MANU/SC/0133/1978………………………………………………………………………..3
State of Maharashtra vs. Bharat Shanti Lal Shah and Ors. (01.09.2008 - SC) :
MANU/SC/3789/2008…………………………………………………………………………3
Memorial On Behalf of Petitioner V
Ramlila Maidan Incident vs. Home Secretary, Union of India (UOI) and Ors. (23.02.2012 -
SC) : MANU/SC/0131/2012…………………………………………………………………3
Hinsa Virodhak Sangh v. Mirzapur Modi Kuresh Jamat, A.I.R. 2008 S.C. 1892………….3
Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi and Ors. (13.12.2012 -
SC) : MANU/SC/1103/2012……………………………………………………………….3
Distt. Registrar and Collector, Hyderabad and Ors. vs. Canara Bank and Ors. (01.11.2004 -
SC) : MANU/SC/0935/2004………………………………………………………………..3
Ram Jethmalani and Ors. vs. Union of India (UOI) and Ors. (23.09.2011 - SC) :
MANU/SC/1100/2011………………………………………………………………………3
National Legal Services Authority vs. Union of India (UOI) and Ors. (15.04.2014 - SC)…3
Govind vs. State of Madhya Pradesh and Ors. (18.03.1975 - SC) : MANU/SC/0119/1975….4
Krishnan and Ors. vs. Krishnaveni and Ors. (24.01.1997 - SC) : MANU/SC/0223/1997….4
Mohd. Arif vs State Of Uttarakhand Criminal Misc. Application (C-482) No. 909 of
2014……………………………………………………………………………………………5
Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277……………………..6
Chintaman Rao and Ors. vs. The State of Madhya Pradesh (18.02.1958 - SC) :
MANU/SC/0143/1958………………………………………………………………………..6
Sunil Batra vs. Delhi Administration and Ors. (30.08.1978 - SC) : MANU/SC/0184/1978….7
National Legal Services Authority vs. Union of India (UOI) and Ors. (15.04.2014 - SC) :
MANU/SC/0309/2014…………………………………………………………………………7
Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors. (13.01.1981 -
SC) : MANU/SC/0517/1981………………………………………………………………9
Kishore Samrite vs. State of U.P. and Ors. (18.10.2012 - SC) : MANU/SC/0892/2012……9
Suresh Kumar Koushal and Ors. vs. NAZ Foundation and Ors. (11.12.2013 - SC) :
MANU/SC/1278/2013………………………………………………………………………..10
State of Kerala and Ors. vs. N.M. Thomas and Ors. (19.09.1975 - SC) :
MANU/SC/0479/1975………………………………………………………………………10
Anuj Garg and Ors. vs. Hotel Association of India and Ors. (06.12.2007 - SC) :
MANU/SC/8173/2007………………………………………………………………………11
Video Electronics Pvt. Ltd. and Ors. vs. State of Punjab and Ors. (22.12.1989 - SC) :
MANU/SC/0644/1989……………………………………………………………………….11
Ashok Kumar Gupta and Ors. vs. State of U.P. and Ors. (21.03.1997 - SC) :
MANU/SC/1176/1997………………………………………………………………………11
Bhim Singhji and Ors. vs. Union of India (UOI) and Ors. (01.07.1985 - SC) :
MANU/SC/0035/1985………………………………………………………………………..11
State of A.P. and Ors. vs. National Thermal Power Corporation Ltd. and Ors. (22.04.2002 -
SC) : MANU/SC/0356/2002…………………………………………………………………11
State of Madras and Ors. vs. V.G. Row (31.03.1952 - SC) : MANU/SC/0013/1952………11
Minerva Mills Ltd. And ors v. Union of India and ors. (09.09.1986- SC):
MANU/SC/0523/1986………………………………………………………………………..11
Constitutional Provisions
India Const. art. 32……………………………………………………………………1
India Const. art. 32, cl 1……………………………………………………………….1
India Const. article 21…………………………………………………………………2
Book
5, Durga Das Basu, Constitution Of India 4914, (Justice S S Subramani,9th ed.2015). ..........2
National Legal Services Authority v. Union of India, (2014) 5 SCC 438 ...............................3
S.P. Gupta v. President of India And Ors, AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2
SCR 365. ............................................................................................................................1
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310: AIR 1976 SC 490 ................................10
Online Databases
Manupatra
SCC Online
JSTOR
LexisNexis
Westlaw
International Conventions
UDHR……………………………………………………………………………………2
ICCPR……………………………………………………………………………………2
Statutes Referred
IPC, 1860……………………………………………………………………………..4
IT Act, 2008………………………………………………………………………..5
Memorial On Behalf of Petitioner X
1st Law Tales Virtual Moot Court Competition, 2020
INDEX OF ABRREVIATIONS
& And
IPC Indian Penal Code
AIR All India Reporter
Anr. Another
Art. Article
so State Of
Constitution The Constitution of Indicia, 1950
STATEMENT OF JURISDICTION
The Hon’ble Court has the Jurisdiction to hear the instant matter under Article 32 of the
Constitution of Indicia, 1950.
(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.
STATEMENT OF FACTS
A University situated in Bangla Pradesh, Indicia named Bharda University has started its
fresh admissions for the batch of 2013. Numerous students took admission in Bharda
University on the basis of merit, quota and caste. Two students named Mahesh and Suresh
also took admission in Bharda University on the basis of their merit. Suresh’s and Mahesh’s
family were very poor and they lie in the BPL (Below Poverty Line) Category, so they were
granted a scholarship to pay the fee.
Suresh was alloted room with Ramesh and Mahesh was allotted room with Palkesh. Their
rooms were adjacent to each other. During the admission process, Mahesh and Suresh
became good friends. As their friendship grew, they became emotionally attached to each
other and started facilitating each other academically to secure good marks in semester
examinations. Though Ramesh was the roommate of Suresh but he was not into studies
because of his infamous nature and whenever he was involved in group studies by Suresh and
Mahesh, he instead of studying started disturbing them. So, they decided to remove their
helping hand from Ramesh because of which he started failing in exams. Ramesh started
envying both of them and held them accountable for his situation.
Mahesh and Suresh while studying together developed a sexual attraction towards each other
and ended up being intimate during the time when Ramesh was not around. One day, Ramesh
planned a night out with his friend Rupesh. Suresh called Mahesh in his room after Ramesh
left and while studying they got intimate. Ramesh forgot his wallet and went back to take it.
He sneaked into their personal space and thinking it as an opportunity for revenge shot their
video. Ramesh told everything to Rupesh and also showed him the video and they planned to
blackmail them for notes and study material. Ramesh and Rupesh confronted them about their
relationship and started blackmailing them in exchange of the video not posted on internet.
Their plan turned out to be a success. After some time, Ramesh lost a hefty amount of money
in bets and waging and started blackmailing them for money to pay off his debts.
Dispute:-
After experiencing the blackmailing for one year they approached an LGBTQ rights NGO
named ‘XYZ’. XYZ decided to file a plea in SC seeking the remedy for infringement of a
fundamental right, i.e. Right to privacy. Ramesh reverted by claiming that homosexuality is a
criminal offense and he has the video evidence for the same.
STATEMENT OF ISSUE
Issue I
Whether The Petition filed by XYZ is maintainable in the Supreme Court of Indicia?
Issue II
Issue III
Whether the act of accused attracts liability under any Indian Law?
Issue IV
SUMMARY OF ARGUMENTS
The PIL is maintainable before the Hon’ble Supreme Court of Indicia for the reason that the
act done by the accused is violating the human rights of the victims and a fundamental right
guaranteed under article 21 of Indian Constitution i.e. Right to life and personal liberty. The
petitioner has the locus standi and sufficient interest for filing the petition before the court,
the word “Locus Standi” means the right of any party to appear before the court or to bring
an action before it and a person not directly affected by the issue can also file a suit in the
interest of public at Large. In the present case the petitioner who is not directly affected by
the issue also has the right to bring an action before the court as he is acting in a good faith.
Right to privacy is considered as an integral part of Right to life and personal liberty
guaranteed under article 21 of Indian Constitution, 1950. Various Judgements have depicted
right to privacy as a fundamental right in India as well as the right to privacy is supported by
various international conventions such as the UDHR (Universal Declaration of Human
Rights) and ICCPR (International Covenant of Civil and Political Rights). These conventions
say that, anyone’s personal space should not be infringed and in this case accused infringed
the personal space of victims and infringed their right to privacy which is a human as well as
a fundamental right.
III. The act attracts liability under IPC as well as IT act 2008.
The act done by the accused is punishable under Indian Penal Code, 1860 as well as the
Information Technology Act, 2008.The accused had threatened the victims to leak their video
of getting intimate in exchange of study material i.e., notes and later he also threatened them
for money, which he lost in betting and waging. This act of the accused constituted the
offence of extortion under section 389 of IPC and section 66, 67 and 67a of IT act, 2008.
IV. Section 377 of the Indian Penal code should be Decriminalized or severed.
Section 377 of the Indian Penal Code criminalizes the intercourse between two men , woman
or with an animal by defining such type of intercourse as the carnal or unnatural intercourse.
This rule violates a basic human right described under the article 6 of the UDHR which says
that everyone has a right to recognition in every part of the world. This rule puts a question
on the mere existence of the gay and lesbian people. Everyone should have a basic right to
choose his or her partner and that is why this provision should be decriminalized. This
provision might have been appropriate when it was formed, but in the current scenario with a
massive evolution of the human rights regime, this provision is highly inappropriate and if
not totally decriminalized, it should be severed up to the part it criminalizes same sex
marriages and intercourse, the rest of the part should be left.
ARGUMENTS ADVANCED
1. Locus Standi means right to bring an action, to be heard in court, or to address a court on
a matter before it.3 A person acting in good faith and having sufficient interest in the
proceeding of PIL will have a locus standi and can approach the court for wiping out the
tears of poor and needy, suffering from violation of their fundamental rights.4
3. When we have the case of a person or a class of persons whose fundamental rights are
violated but they cannot resort going to the court on account of their poverty or
disability, socially or economically disadvantaged position, in such a case the court can
and must allow any member of the public acting bona fide to espouse the cause of such
1
Constitution of India, 7 June 2020, 4:26 PM, https://www.india.gov.in/my-government/constitution-india
2
Want to file a Public Interest Litigation(PIL)? Here’s all you need to know,19 July 2020, 9:14 PM,
https://www.indiatoday.in/information/story/want-to-file-a-public-interest-litigation-pil-here-s-all-you-need-to-
know-1592174-2019-08-27
3
S.P. Gupta vs. Union of India (UOI) and Ors. (30.12.1981 - SC) : MANU/SC/0080/1981
4
Janata Dal vs. H.S. Chowdhary and Ors. (28.08.1992 - SC) : MANU/SC/0532/1992
5
Supra. at 2.
6
Bandhua Mukti Morcha vs. Union of India (UOI) and Ors. (13.08.1991 - SC) : MANU/SC/0618/1991
4. The SC has held that in Social or public interest actions any person may move the court.
This is called public interest litigation.7
5. SC has relaxed its strict rules relating to affidavit locus standi and the like in the class of
litigation classified as “Public Interest Litigation”.
6. Where the people in general are interested in the vindication of some right or the
enforcement of some public duty8. An application under art. 32 cannot be refused on the
ground that the petitioner had another legal remedy open to him. Where a FR appears to have
been infringed9, the SC has jurisdiction to enforce the fundamental rights against the private
bodies and individuals. It can exercise its jurisdiction suo moto on the basis of PIL10.
1.2 There is a violation of basic human rights.
2. India is a party to the UDHR and ICCPR, these declarations describe some of the
fundamental rights as inalienable. All human beings are born free and have equal dignity,
rights13. They are endowed with reason and conscience and should act towards one another in
spirit of brotherhood. Everyone has right to life, liberty and security of person14. No one
should be subjected to torture or to cruel, inhumane or degrading treatment.
7
Kavalappara Kottarathil and Kochunni vs. States of Madras and Kerala and Ors. (04.05.1960 - SC) :
MANU/SC/0366/1960
8
People’s Union v. Union of India,A.I.R 1982 S.C. 1473 (para 1)
9
T. Nagappa vs. T.C. Basappa and Ors. (15.09.1955 - SC) : MANU/SC/0099/1955
10
Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty 1996 AIR 922, 1996 SCC (1) 490
11
I. C. Golaknath & Ors vs State Of Punjab & Anrs. 1967 AIR 1643, 1967 SCR (2) 762
12
Ajay Hasia and Ors. vs. Khalid Mujib Sehravardi and Ors. (13.11.1980 - SC) : MANU/SC/0498/1980
13
United Nations, United Declaration of Human Rights, 7 June 2020, 5:40 PM,
https://www.un.org/en/universal-declaration-human-rights/
14
International Covenant on Civil and Political Rights, 7 June 2020, 5:43 pm,
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
2. Right to privacy has underwent a development process by now and if the term “personal
liberty” is widely interpreted, this will include right to privacy within the meaning of article
21 of constitution20. If the personal life or private life of any person is wrongfully intruded,
this act endangers that person’s right to privacy which is an 21integral part of right to life and
personal liberty under constitution22. 23
Indian courts whether it be SC or HC have justified in
their 24numerous judgments that right to privacy is an 25integral and 26indispensable part of
15
Supra. at 1
16
Gramvikas Shikshan Prasarak Mandal, Sondoli vs. The State of Maharashtra and Ors. (11.04.2000 -
BOMHC)
17
Kharak Singh vs. The State of U.P. and Ors. (18.12.1962 - SC) : MANU/SC/0085/1962
18
Bhavesh Jayanti Lakhani vs. State of Maharashtra and Ors. (07.08.2009 - SC) : MANU/SC/1410/2009
19
Maneka Gandhi vs. Union of India (UOI) and Ors. (25.01.1978 - SC) : MANU/SC/0133/1978
20
State of Maharashtra vs. Bharat Shanti Lal Shah and Ors. (01.09.2008 - SC) : MANU/SC/3789/2008
21
Ramlila Maidan Incident vs. Home Secretary, Union of India (UOI) and Ors. (23.02.2012 - SC) :
MANU/SC/0131/2012
22
Hinsa Virodhak Sangh v. Mirzapur Modi Kuresh Jamat, A.I.R. 2008 S.C. 1892
23
Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi and Ors. (13.12.2012 - SC) :
MANU/SC/1103/2012
24
Distt. Registrar and Collector, Hyderabad and Ors. vs. Canara Bank and Ors. (01.11.2004 - SC) :
MANU/SC/0935/2004
25
Ram Jethmalani and Ors. vs. Union of India (UOI) and Ors. (23.09.2011 - SC) : MANU/SC/1100/2011
26
‘X' vs. Hospital 'Z' (21.09.1998 - SC) : MANU/SC/0733/1998
27
Sharda vs. Dharmpal (28.03.2003 - SC) : MANU/SC/0260/2003
3.Right to privacy empowers a person to protect one’s family, motherhood28 and private life29
and if this right is violated, it affects the spirit of some basic human rights guaranteed
under 30UDHR and 31ICCPR. In the present case, accused breached the private space of the
victims and violated their right to privacy. Accused has breached the right to privacy of the
victims, which is a fundamental right because it is an integral part of article 21 of Indian
Constitution.
3. The act of accused attracts liability under IPC as well as IT Act 2008
Accused extorted the victims for his dishonest benefit. He sneaked into their private space
and shot their video while they were getting intimate and used that video to extort them in
exchange of notes and study material and later for the money which he lost in waging and
betting. The act of accused constitutes an punishable offense under both IPC & IT act 2008.
Counsels for the Petitioner will cover the liability of accused as we proceed further.
3.1) ACT IS PUNISHABLE UNDER SECTION 383, 384 AND 389 OF INDIAN PENAL
CODE, 1860.
1. Whoever intentionally puts any person in fear of any injury to that person ,or to any
other,and thereby dishonestly induces the person so put in fear to deliver to any person any
property or valuable security, commits “extortion”32.
2. Offences like robbery,dacoity,kidnapping and “extortion” are grave and serious and are
generally committed by desperate and hardened criminals, who threaten to otherwise
eliminate the witness33.
28
Govind vs. State of Madhya Pradesh and Ors. (18.03.1975 - SC) : MANU/SC/0119/1975
29
Shyambabu Verma vs. State of Madhya Pradesh (08.01.1996 - MPHC) : MANU
30
UDHR § 12 (1948)
31
ICCPR § 17 (1976)
32
IPC § 383 (1860)
33
Krishnan and Ors. vs. Krishnaveni and Ors. (24.01.1997 - SC) : MANU/SC/0223/1997
The accused must put any person in fear to injury to that person or any other person &
The accused must thereby induce the person so put in fear to deliver anything that can be
converted into valuable security
4. In the given case, Ramesh’s plan turned out to be success. Putting in fear a person to
deliver something valuable amounts to extortion35. If the act of inducement caused by the
wrongdoer
bring forth its result consenting to produce requisite effect , offence of extortion takes place36.
According to section 389 of IPC, “putting a person in fear of accusation of offence, in order
to commit extortion is punishable ; and, if the offence be punishable under sec.377 of this
code, may be punished with imprisonment of life”. It was held in Amit garg vs SO
uttrakhand, Extortion and transmission of any material which contains sexually explicit act in
electronic form are certainly the penal offences.
5. In the given case, Ramesh blackmailed them for helping him academically in exchange of
video not being posted on internet. The essence of offence of extortion is complete after the
actual delivery37 .The given case fulfills all the ingredients of the offence of “extortion” and
hence the respondents must be held liable.
3.2) PUNISHABLE OFFENCE UNDER SEC 66E, SEC 67, SEC 67A OF
INFORMATION TECHNOLOGY ACT , 2008.
34
( 2.2.2007 – SC) : MANU/SC/7061/2007
35
Gursharan Singh vs. State of Punjab (10.09.1996 - SC) : MANU/SC/1597/1996
36
Biram Lal vs. State, RLW 2007 (1) Raj 713
37
Labhshankar vs. State of Saurashtra, 1955 CriLJ 839
38
IT Act § 66E (2008)
Memorial On Behalf of Petitioner 5
the act provides for punishment for publishing or transmitting obscene material in electronic
form39.
2. Section 67 A of the act provides for punishment for publishing or transmitting of the
material containing sexually explicit act, etc, in electronic form40. In the case of Janhit manch
and ors vs uoi, it was held that the person liable for commitment of offence which falls under
the purview of sec 66 E, sec 67 or sec 67 A of IT Act , 200841 shall be punished.
39
IT Act § 67 (2008)
40
IT Act § 67A (2008)
41
Janhit Manch & Ors. v. The Union of India PIL NO. 155 OF 2009
Memorial On Behalf of Petitioner 5
1st Law Tales Virtual Moot Court Competition, 2020
3. Extortion and transmission of any material which contains sexually explicit act in the
electronic form are certainly the penal offenses. Extortion through message containing
sexually explicit act or conduct of the victim is a punishable offence. In the case of
Parminder Singh vs SO Punjab, convict was sentenced 2 year rigorous imprisonment under
sec 66 E and sec 67A of the IT Act42.
1.As Martin Luther King Jr. rightly said “injustice anywhere is a threat to justice
everywhere”. In 1860 when we got the Indian Penal Code, drafted by Lord Macaulay, the
british government inserted sec. 377 in the IPC, which brought in the concept of “sexual
offences against the order of nature”. In India we did not have the concept of something being
“against the order of nature”. It was essentially a western concept which has remained over
the years44. Social prejudice and laws criminalizing same-sex intercourse have lead to several
negative outcomes impacting the overall health of the LGBTQ community like blackmailing,
extortion, depression, anxiety, eviction, violence, substance abuse, and interruptions in
treatment. By criminalizing private, consensual same-sex conduct, sec 377 IPC serves 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 relationships45. 2.Section 377 of the IPC, which criminalizes men who have sex with
men, must be decriminalized46. Section 377, if retained in its present form, would involve the
violation of, not one but, several FRs of the LQBTQs, namely, right to equality, right of
42
Parminder Singh vs. State of Punjab and Ors. (15.02.2013 - PHHC) : MANU/PH/0319/2013
43
S/ vs Sonu Sawarkar Fir No. 58/12
44
Naz Foudation vs Government of NCT of Delhi, 7 July 2020, 8:18 PM,
https://indiankanoon.org/docfragment/100472805/?formInput=kirby
45
Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277
46
Ramadoss backs gay rights, says Sec 377 must go, 7 July 2020, 8:26 PM,
http://archive.indianexpress.com/news/ramadoss-backs-gay-rights-says-sec-377-must-go/346649
47
Supra. at 46
48
E.P. Royappa vs. State of Tamil Nadu and Ors. (23.11.1973 - SC) : MANU/SC/0380/1973
49
Chintaman Rao and Ors. vs. The State of Madhya Pradesh (18.02.1958 - SC) : MANU/SC/0143/1958
50
Sunil Batra vs. Delhi Administration and Ors. (30.08.1978 - SC) : MANU/SC/0184/1978
51
Supra. At 46
52
Yogyakarta Principles- human rights law review 8:2(2008), 207-248
53
National coalition for gay and lesbian equality v. the minister of justice, 7 July 2020, 8:37 PM,
https://en.wikipedia.org/wiki/National_Coalition_for_Gay_and_Lesbian_Equality_v_Minister_of_Justice
3.The discrimination on the ground of sex under art 15 and 16, therefore includes
discrimination on the ground of gender identity54. LGBTQ persons being a sexual minority
have been subjected to societal prejudice, discrimination and violence on account of their
sexual orientation. Since sec. 377 criminalizes “carnal intercourse against the order of
nature”, it complex LGBT persons to lead closeted lives.
4. As a consequence, LGBT persons are seriously
disadvantaged and prejudiced when it comes to access to health care facilities55. The most
important outcome is the psychological harm which may ensue from the state of affairs as the
fear of discrimination(by LGBT) would logically lead them to concealment of true identity
and this is harmful to their personal confidence and self-esteem56. The expression “sex”as
used in art.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 FR against
discrimination. Article 15’s prohibition of sex discrimination implies the right to autonomy
and self-determination, which places emphasis on individual choice. Therefore, a measure
that disadvantages a vulnerable group defined on the basis of a characteristic that relates to
personal autonomy must be subject to scrutiny 57 . Any discrimination meted out to the
LGBTQ community on the basis of sexual orientation would run counter to the mandate
provided under the constitution and the said view has also gained approval of this court in the
NALSA case. The rights of LGBT community need to be recognized and protected, for
sexual orientation is an integral and innate facet of every individual’s identity. A person
belonging to the said community does not become alien to the concept of individual and his
individualism cannot be viewed with a stigma.
4.1.3 Article 19
Sec 377 IPC creates structural impediments to the exercise of freedom of speech and
expression and other freedoms under art 19 by homosexuals or gays 58. Law should not be
used in a manner that it has a chilling effect on the freedom of speech and expression59. Sec.
54
National Legal Services Authority vs. Union of India (UOI) and Ors. (15.04.2014 - SC) :
MANU/SC/0309/2014
55
The economic cost of stigma and the exclusion of the LGBT people: a case study of India(English), 7 June
2020, 8:54 PM, https://documents.worldbank.org/en/publication/documents-
reports/documentdetail/527261468035379692/the-economic-cost-of-stigma-and-the-exclusion-of-lgbt-people-a-
case-study-of-india
56
DELWIN VRIEND V. HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA. [1998] 1 SCR 493
57
Supra. at 46
58
Id.
59
S. Khushboo vs. Kanniammal and Ors. (28.04.2010 - SC) : MANU/SC/0310/2010
4.1.4 Article 21
1.Right to life and liberty, as envisaged u/a 21, is meaningless unless it encompasses
within its sphere individual dignity and right to dignity includes the right to carry such
functions and activities as would constitute the meaningful expression of the human
self. Right to life could not be restricted to a mere animal existence, and provided
much more than only physical survival60. It suffices for us to acknowledge that adults
may choose to enter upon this relationship in the confines of their homes and their
own private lives and still retain their dignity as free persons. When sexuality finds
overt expression in intimate conduct with another person, the conduct can be but one
element in personal bond that is more enduring.
2.The liberty protected by the constitution allows homosexuals the right to male this
choice61. Sec 377 by creating a taint of criminality, deprives the LGBTQ persons of
their right to reputation which is a facet of the right to life and liberty of a citizen
under art 21 to the effect that reputation is an element of personal security and
protected by the constitution with the right to enjoyment of life and liberty62. This
right is being denied to the LGBTQ persons because of sec 377 as it makes them
apprehensive to speak openly about their sexual orientation and makes them
vulnerable to extortion, blackmail and denial of state machinery for either protection
or for enjoyment of other rights and amenities.
3.No aspect of one’s life may be said to be more private or intimate than that of
sexual relations, and since private, consensual, sexual relations or sexual preferences
figure prominently within an individual’s personality and lie easily at the core of
“private space”, they are an inalienable component of the right to life. Therefore
prohibition of certain private, consensual sexual relations (homosexual) provided by
sec 377 IPC unreasonably abridges the right of privacy and dignity within the ambit
of art. 21 63 . Privacy recognizes that we all have a right of private intimacy and
60
Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors. (13.01.1981 - SC) :
MANU/SC/0517/1981
61
Lawrence v. Texas, 539 US 558(2008)
62
Kishore Samrite vs. State of U.P. and Ors. (18.10.2012 - SC) : MANU/SC/0892/2012
63
Supra. at 46
Memorial On Behalf of Petitioner 9
autonomy which allows us to establish and nurture human relationships without
interference from the outside community. If in expressing one’s sexuality, one acts
willingly and without
64
Supra. at 54
65
Distt. Registrar and Collector, Hyderabad and Ors Vs. Canara Bank and Ors. MANU/SC/0935/2004
1. We do not intend to challenge that part of sec. 377 that relates to carnal intercourse
with animals. The aspect that is debatable is consensual carnal intercourse between
humans, whether homosexuals or heterosexuals.
2. Art. 13 is the basis of doctrine of severability. Art. 13(2) deals with the post
constitution laws and prohibits the state from making a law which takes away or
abridges the FRs and any such law is void to the extent of the contravention.
Indian const is a great social document, almost revolutionary in its aim of
transforming a medieval, hierarchical society into a modern, egalitarian democracy.
The purpose of having a constitution is to transform the society for the better and this
objective is the fundamental pillar of transformative constitutionalism73.
3.Our constitution is organic in nature, being a living organ, it is ongoing and with
the passage of time, it must change. Horizons of constitutional law are expanding 74.
Classification which may have been treated as valid at the time of its adoption may
cease to be so on account of changing social norms75. It is not that with changing
times the meaning changes but changing times illustrate and illuminate the meaning
of the expression used. The connotation of the expression used takes its shape and
color in evolving dynamic situations76. Therefore it is but the duty of the court to
balance the competing rights by interpreting the principles, to the language or the
words contained, in the living and organic constitution, broadly and liberally77.
4.The constitutionality of a provision will have to be judged keeping in view the
interpretative changes of the statute affected by passage of time, the law although
may be constitutional when enacted but with passage of time the same may be held
to be unconstitutional in view of the changed situation78. Where the legislation falls
in part within the area allotted to it and in part outside it, it is undoubtedly void as to
73
State of Kerala and Ors. vs. N.M. Thomas and Ors. (19.09.1975 - SC) : MANU/SC/0479/1975
74
SAURABH CHAUDHARI V. UOI (2003) 11 SCC 146; CHIEF JUSTICE OF ANDHRA PRADESH V.
L.V.A. DIXITULU (1979) 2 SCC 34
75
Anuj Garg and Ors. vs. Hotel Association of India and Ors. (06.12.2007 - SC) : MANU/SC/8173/2007
76
Video Electronics Pvt. Ltd. and Ors. vs. State of Punjab and Ors. (22.12.1989 - SC) : MANU/SC/0644/1989
77
Ashok Kumar Gupta and Ors. vs. State of U.P. and Ors. (21.03.1997 - SC) : MANU/SC/1176/1997
78
John Vallamatton v. Union of India (2003) 6SCC 611
the act79. If the legislation in question violates a FR, it would have to be struck down
“in discharge of a duty plainly laid upon the courts by the constitution80.
5.Paragraph 7 of the tenth schedule, inserted by the 52nd amendment act of 1985, was
declared unconstitutional because it violated the provisions under art 368(2). But the
rest part was upheld81. Section 4 of 55 of the 42nd amendment act, was struck down
for being beyond the amending power of the parliament and the rest of the act was
declared to be valid82. Preventive detention was held to be void and was removed
from section 14 and the rest of the part was held to be valid83.
6. Sec. 377 criminalizing consensual carnal intercourse between homosexuals or
heterosexuals in private is outdated and has no place in the modern society. In the
present case, Ramesh and Suresh willingly got intimate in private and therefore they
should not be subjected to any criminal proceedings.
79
R.M.D. Chamarbaugwalla vs. The Union of India (UOI) (09.04.1957 - SC) : MANU/SC/0020/1957
; Bhim Singhji and Ors. vs. Union of India (UOI) and Ors. (01.07.1985 - SC) : MANU/SC/0035/1985
; State of A.P. and Ors. vs. National Thermal Power Corporation Ltd. and Ors. (22.04.2002 - SC) :
MANU/SC/0356/2002
80
State of Madras and Ors. vs. V.G. Row (31.03.1952 - SC) : MANU/SC/0013/1952
81
Kihoto Hollohan v. Zachillhu and ors (18.02.1992-SC):MANU/SC/0753/1992
82
Minerva Mills Ltd. And ors v. Union of India and ors. (09.09.1986- SC): MANU/SC/0523/1986
83
A.K. Gopalan vs. Govt. of India (27.10.1965 - SC) : MANU/SC/0091/1965
Wherefore, in the light of the issues raised, arguments advanced, reasons given and
authorities cited, this Hon’ble Court may kindly be pleased to;
4. HOLD, THAT THE SECTION 377 OF IPC IS ABRIDING PEOPLE FROM THEIR
BASIC HUMAN RIGHT AS WELL AS FUNDAMENTAL RIGHT AND HENCE IT
SHOULD BE DECRIMINALIZED OR SEVERED.
And any other relief that this Hon’ble Court may be pleased to grant in the interests of
justice, equity, and good conscience.