BALAJI LAW COLLEGES THIRD INTERNAL MOOT COURT ROUND

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

NAVTEJ SINGH JOHAR & OTHERS APPELLANT

VERSUS
UNION OF INDIA & OTHERS RESPONDENT

MEMORIAL ON BEHALF OF THE RESPODENT

COUNSEL FOR THE RESPONDENT

COUNSEL FOR THE RESPONDENT

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TABLE OF CONTENTS

CONTENTS PAGE NO.

LIST OF ABBREVIATION 3
INDEX OF AUTHORITIES 4
INDIAN BOOKS AND LEGISLATION 4
STATEMENT OF JURISDICTION 5
STATEMENT OF FACTS 6-7
ISSUES RAISED 8
SUMMARY OF ARGUMENTS 9 - 10
ARGUMENTS ADVANCED 11 - 18
PRAYER 19

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
AIR ALL INDIA RECORD
SEC. SECTION
HON’BLE HONOURABLE
& AND
II PARAGRAPH
ANR. ANOTHER
ART. ARTICLE
i.e. THAT IS
ORS. OTHERS
SC SUPREME COURT
SCC SUPREME COURT CASES
u/s UNDER SECTION
UOI UNION OF INDIA
V. VERSUS
Sd/- SIGNED
Cr. P.C. CRIMINAL PROCEDURE CODE
Ed. EDITION
www. WORLD WIDE WEB
S.C.R. SUPREME COURT REPORTER
LGBT LESBIAN, GAY, BISEXUAL, AND
TRANSGENDER

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INDEX OF AUTHORITIES
TABLE OF CASES

1. Chiranjit Lal Chowdhury v. The Union of India and Others, [1950] S.C.R. 869
2. State of West Bengal v. Anwar Ali Sarkar , [1952] SCR 294
3. Lawrence v. Texas, 539 U.S. 558 (2003)

INDIAN BOOKS

SR.NO. BOOKS
1 THE CONSTITUTION OF INDIA 1950 - BY M.P.JAIN.
2 INDIAN PENAL CODE 1860 – BY J.D.MAYNE

LEGISLATION REFFERED

SR.NO. LEGISLATION
1 THE CONSTITITION OF INDIA 1950.
2 INDIAN PENAL CODE 1860.
3 CODE OF CRIMINAL PROCEDURE 1973.

LEGAL DATA BASE.

SR.NO. WEBSITES /ARTICLES

1 www.indiakannon.com
2 https//.blog.ipleaders.in
3 www.lawinsider.com
4 www.casemine.com
5 www.livelaw.in/news
6 https//.lawtrend.in

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STATEMENT OF JURISDICTION

THE RESPONDENT HAS THE HONOR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF INDIA FOR THE APPEAL IN THE WRIT PETITION

(CRIMINAL) 76/2016 FILED U/S 377 OF INDIAN PENAL CODE,1860.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

WRIT PETITION FILED ON CONSTITUTIONAL VALIDITY OF SECTION 377 OF

INDIAN PENAL CODE,1860 IN LIGHT OF ARTICLES 21, 14 AND 15 OF THE

CONSTITUTION OF INDIA BEFORE THE HON’BLE SUPREME COURT OF

INDIA.

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SUMMARY OF FACTS

Section 377 of IPC categorized consensual sex between homosexuals as “unnatural

offence” and criminalized it. It discriminates a minority solely on the ground of their
sexual orientation which is analogous to prohibited ground of sex. The section was
challenged in Suresh Kaushal and Anr Vs. NAZ Foundation and Ors. Stating it violates
Article 14,15 and 21 of the Constitution. To which the SC passed a very vague judgment
stating that the decision of decriminalizing homosexuality should have been made by
Parliament instead of courts. The courts can only do so if it is proved beyond reasonable
doubts that the law infringes constitutional provisions.

Furthermore, the court also highlighted that since less than 200 cases have arisen in 150
years, therefore it's not a sound basis for declaring that section 377 IPC ultra vires the
provision of Article 14,15 and 21 of the Constitution. In conclusion, The SC said that
Section 377 does not suffers from the vice of unconstitutionality with no further
elaboration. The same judgment was challenged in Navtej Singh case through a petition
made by five individuals from the LGBTQ community for scrapping.

Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional

attraction to another person. Sexual orientation includes transgender and gender-variant
people with heavy sexual orientation and their sexual orientation may or may not change
during or after gender transmission, which also includes homosexuals, bisexuals,
heterosexuals, asexual etc. Gender identity and sexual orientation, as already indicated,
are different concepts.

A minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or

transgenders (LGBT) is not a sustainable basis to deny the right to privacy. The purpose
of elevating certain rights to the stature of guaranteed fundamental rights is to insulate
their exercise from the disdain of majorities, whether legislative or popular.

The guarantee of constitutional rights does not depend upon their exercise being
favourably regarded by majoritarian opinion.

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Sexual orientation is an essential attribute of privacy. Discrimination against an

individual on the basis of sexual orientation is deeply offensive to the dignity and self-
worth of the individual.

Equality demands that the sexual orientation of each individual in society must be
protected on an even platform.

The right to privacy and the protection of sexual orientation lie at the core of the
fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution of India,
1950.

India’s lesbian, gay, bisexual, and transgender (LGBT) community, which is waiting for
a Supreme Court ruling on Section 377 of the Indian Penal Code (IPC), 1860 which
effectively criminalises same-sex relationships between consenting adults.

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ISSUES RAISED

The main issues before Hon'ble Court were:

1) Whether judgment given in Suresh Kumar Koushal v. NAZ foundation was proper or

not?

2) Whether section 377 of IPC violates article 14 and 15 of Constitution of India or not?

3) Whether section 377 is against Right to privacy which is a fundamental right?

4) Whether section 377 has a chilling effect on Article 19 (1)(a) by criminalizing gender

expression of LGBT community?

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SUMMARY OF ARGUMENTS

The respondent on behalf of Intervener said that sec 377 constitutes abusing the organs

and such acts are undignified and derogatory and amount to constitutional wrong and

constitutional immorality.

Sufficient rights are provided to the community by this court in NALSA and further

reliefs asked by petitioners are mere abuse to privacy and personal liberty transgressing

the concept of public morality.

Criminalization of acts in Section 377 is more relevant now as Homosexuals indulging in

those acts are more prone to contact HIV than heterosexuals and henceforth right to

privacy should not be extended for the same.

Apart from the fact that declaring Section 377 unconstitutional would completely destroy

the family system, institution of marriage and social culture, it will ruin the political,

economic and cultural heritage of the country.

Section 377 does not violate the constitutional rights of a person as it is the duty of state

to put reasonable restrictions on certain acts like carnal intercourse to protect the citizens

from something offensive and injurious.

It does not violates Article 14 as the state has the power to identify who should be

regarded as a class for making laws under reasonable classification. Moreover, the

Section only defines an offence and its punishment.

It does not violates Article 15 as the article mainly prohibits discrimination on the basis

of sex and not sexual orientation which is nowhere described.

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It will also impact Parsi Marriage and Divorce Act, Special Marriage Act, Indian Divorce

Act and Hindu MarriageAct.

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ARGUMENTS ADVANCED

1. Whether the PIL is maintainable in the Supreme court of India or not?

It is humbly submitted that, the appeal filed by the appellant challenging the order passed

by lower court in a case u/s 377 of The Indian Penal Code,1860 before the Hon’ble

Supreme Court of India is not maintainable as under article 14,15 and 21 of The

Constitution Of India.

Gender identity is one of the most-fundamental aspects of life which refers to a

person’s intrinsic sense of being male, female or transgender or transsexual person. A

person’s sex is usually assigned at birth, but a relatively small group of persons may born

with bodies which incorporate both or certain aspects of both male and female

physiology. At times, genital anatomy problems may arise in certain persons, their innate

perception of themselves, is not in conformity with the sex assigned to them at birth and

may include pre and post-operative transsexual persons and also persons who do not

choose to undergo or do not have access to operation and also include persons who

cannot undergo successful operation. Countries, all over the world, including India, are

grappled with the question of attribution of gender to persons who believe that they

belong to the opposite sex. Few persons undertake surgical and other procedures to alter

their bodies and physical appearance to acquire gender characteristics of the sex which

conform to their perception of gender, leading to legal and social complications since

official record of their gender at birth is found to be at variance with the assumed gender

identity. Gender identity refers to each person’s deeply felt internal and individual

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experience of gender, which may or may not correspond with the sex assigned at birth,

including the personal sense of the body which may involve a freely chosen, modification

of bodily appearance or functions by medical, surgical or other means and other

expressions of gender, including dress, speech and mannerisms. Gender identity,

therefore, refers to an individual’s self-identification as a man, woman, transgender or

other identified category.

Sexual orientation refers to an individual’s enduring physical, romantic and/or

emotional attraction to another person. Sexual orientation includes transgender and

gender-variant people with heavy sexual orientation and their sexual orientation may or

may not change during or after gender transmission, which also includes homo-sexuals,

bisexuals, heterosexuals, asexual etc. Gender identity and sexual orientation, as already

indicated, are different concepts. Each person’s self-defined sexual orientation and

gender identity is integral to their personality and is one of the most basic aspects of self-

determination, dignity and freedom and no one shall be forced to undergo medical

procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal

recognition of their gender identity.

Indian Law, on the whole, only recognizes the paradigm of binary genders of

male and female, based on a person’s sex assigned by birth, which permits gender

system, including the law relating to marriage, adoption, inheritance, succession and

taxation and welfare legislations. Reference was also made to legislations enacted in

other countries dealing with rights of persons of transgender community. Unfortunately

we have no legislation in this country dealing with the rights of transgender community.

Due to the absence of suitable legislation protecting the rights of the members of the

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transgender community, they are facing discrimination in various areas and hence the

necessity to follow the International Conventions to which India is a party and to give

due respect to other non-binding International Conventions and principles. Constitution

makers could not have envisaged that each and every human activity be guided,

controlled, recognized or safeguarded by laws made by the legislature. Article 21 has

been incorporated to safeguard those rights and a constitutional Court cannot be a mute

spectator when those rights are violated, but is expected to safeguard those rights

knowing the pulse and feeling of that community, though a minority, especially when

their rights have gained universal recognition and acceptance.

Article 14 of the Constitution of India states that the State shall not deny to “any

person” equality before the law or the equal protection of the laws within the territory of

India. Equality includes the full and equal enjoyment of all rights and freedom. Right to

equality has been declared as the basic feature of the Constitution and treatment of equals

as unequals or unequals as equals will be violative of the basic structure of the

Constitution. Article 14 of the Constitution also ensures equal protection and hence a

positive obligation on the State to ensure equal protection of laws by bringing in

necessary social and economic changes, so that everyone including TGs may enjoy equal

protection of laws and nobody is denied such protection. Article 14 does not restrict the

word ‘person’ and its application only to male or female. Hijras/transgender persons who

are neither male/female fall within the expression ‘person’ and, hence, entitled to legal

protection of laws in all spheres of State activity, including employment, healthcare,

education as well as equal civil and citizenship rights, as enjoyed by any other citizen of

this country.

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Articles 15 and 16 prohibit discrimination against any citizen on certain

enumerated grounds, including the ground of ‘sex’. In fact, both the Articles prohibit all

forms of gender bias and gender based discrimination. Article 15 states that the State

shall not discriminate against any citizen, inter alia, on the ground of sex, with regard to

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

(b) use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly

or partly out of State funds or dedicated to the use of the general public.

The requirement of taking affirmative action for the advancement of any socially

and educationally backward classes of citizens is also provided in this Article.

Article 16 states that there shall be equality of opportunities for all the citizens in

matters relating to employment or appointment to any office under the State. Article 16

(2) of the Constitution of India reads as follows :

“16(2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of

birth, residence or any of them, be ineligible for, or discriminated against in respect or,

any employment or office under the State.” Article 16 not only prohibits discrimination

on the ground of sex in public employment, but also imposes a duty on the State to ensure

that all citizens are treated equally in matters relating to employment and appointment by

the State.

Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing

that sex discrimination is a historical fact and needs to be addressed. Constitution makers,

it can be gathered, gave emphasis to the fundamental right against sex discrimination so

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as to prevent the direct or indirect attitude to treat people differently, for the reason of not

being in conformity with stereotypical generalizations of binary genders. Both gender and

biological attributes constitute distinct components of sex. Biological characteristics, of

course, include genitals, chromosomes and secondary sexual features, but gender

attributes include one’s self image, the deep psychological or emotional sense of sexual

identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and

16, therefore, includes discrimination on the ground of gender identity. The expression

‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but

intended to include people who consider themselves to be neither male or female.

Article 21 of the Constitution of India reads as follows:

“21. Protection of life and personal liberty – No person shall be deprived of his life or

personal liberty except according to procedure established by law.” Article 21 is the heart

and soul of the Indian Constitution, which speaks of the rights to life and personal liberty.

Right to life is one of the basic fundamental rights and not even the State has the

authority to violate or take away that right. Article 21 takes all those aspects of life which

go to make a person’s life meaningful. Article 21 protects the dignity of human life, one’s

personal autonomy, one’s right to privacy, etc. Right to dignity has been recognized to be

an essential part of the right to life and accrues to all persons on account of being

humans.

Recognition of one’s gender identity lies at the heart of the fundamental right to

dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well

as an integral part of a person’s identity. Legal recognition of gender identity is,

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therefore, part of right to dignity and freedom guaranteed under our Constitution. Article

21 as already indicated, guarantees the protection of “personal autonomy” of an

individual.

Articles 14, 15, 16, 21 above discussion, would indicate, do not exclude

Transgenders from its ambit, but Indian law on the whole recognize the paradigm of

binary genders of male and female, based on one’s biological sex. As already indicated,

we cannot accept the Corbett principle of “Biological Test”, rather we prefer to follow

the psyche of the person in determining sex and gender and prefer the “Psychological

Test” instead of “Biological Test”. Binary notion of gender reflects in the Indian Penal

Code, and also in the laws related to marriage, adoption, divorce, inheritance, succession

and other welfare legislations like NAREGA, 2005, etc. Non-recognition of the identity

of Transgenders in the various legislations denies them equal protection of law and they

face wide-spread discrimination.

Here the respondent, supports the cause espoused by the petitioner in this PIL and

avers that Section 377 IPC, which criminalises 'carnal intercourse against the order of the

nature', is an unconstitutional and arbitrary law based on archaic moral and

religious notions of sex only for procreation. It asserts that criminalisation of adult

consensual sex under Section 377 IPC does not serve any beneficial public purpose or

legitimate state interest. On the contrary, according to respondent, Section 377 IPC by

criminalising the aforementioned kinds of sexual acts has created an association of

criminality towards people with same sex desires. It pleads that the continued existence

of this provision on the statute book creates and fosters acclimate of fundamental

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rights violations of the gay community, to the extent of bolstering their extreme social

ostracism.

Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981):-

This Court held that the right to dignity forms an essential part of our constitutional

culture which seeks to ensure the full development and evolution of persons and includes

“expressing oneself in diverse forms, freely moving about and mixing and comingling

with fellow human beings”.

Ajay Hasia v. Khalid MujibSehravardi, (1981) :-

It was held that it must, therefore, now be taken to be well settled that what Article 14

strikes at is arbitrariness because any action that is arbitrary must necessarily involve

negation of equality. The Court made it explicit that where an Act is arbitrary, it is

implicit in it that it is unequal both according to political logic and constitutional law and

is, therefore, violative of Article 14.

2. Whether Section 377 violates any of the provisions of the Part III(14,15,21)
of the Constitution of India and therefore whether it is valid or not?
Section 377 is a relic of the British legal system and in effect it criminalised
same-sex conduct. Consensual sexual activities between two adults of the same sex
should not be regulated by a law as it violates their Fundamental Rights. Section 377 is
abused to brutalize the persons belonging to the gay community. Popular morality, as
distinct from constitutional morality as derived from constitutional values, is based on
shifting notions of right and wrong and as of today, the State is not going by the popular
morality but by its own morality and if there is any type of morality that can pass the test
of compelling state interest, it should be constitutional morality.
Section 377 of the IPC found a place in the Indian Penal Code, 1860, prior to the
enactment of Criminal Tribles Act that criminalized all penile- non-vaginal sexual acts

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between persons, including anal sex and oral sex, at a time when transgender persons
were also typically associated with the prescribed sexual practices.
Section 377 criminalises consensual sexual acts of adults in private is violative of
Articles 21, 14 and 15 of the Constitution. While dealing with the question relating to
violation of Article 21, the enlarged scope of the right to life and liberty which also
includes right to protection of one’s dignity, autonomy and privacy, it is held that, The
sphere of privacy allows persons to develop human relations without interference from
the outside community or from the State. The exercise of autonomy enables an individual
to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil
all legitimate goals that he or she may set. In the Indian Constitution, the right to live
with dignity and the right of privacy both are recognised as dimensions of Article 21.
Section 377 IPC denies a person's dignity and criminalises his or her core identity solely
on account of his or her sexuality and thus violates Article 21 of the Constitution. As it
stands, Section 377 IPC denies a gay person a right to full personhood which is implicit
in notion of life under Article 21 of the Constitution.

Suresh Kumar Koushal and another vrs. NAZ Foundation and Others:- It was held
that the Delhi High Court was wrong in its findings and was also wrong in reading down
the section to allow consensual homosexual activities between two adults of the same
sex.Supreme Court answering to the contention laid that the section only lays penalty
against unnatural sexual offences and sexual orientation or gender identity is not covered
under the section thus the section does not apply to LGBT as a class. Supreme Court
further clarified that decisions of other countries favouring consensual sex between same
gender in similar cases cannot be relied in Indian context. Supreme Court in the
judgement vehemently laid that Parliament is the authority which can take decision on
validity or unconstitutionality of section 377.
In the challenge laid to Section 377 of the Indian Penal Code before the Delhi
High Court, one of the grounds of challenge was that the said provision amounted to an
infringement of the right to dignity and privacy. The Delhi High Court, inter alia,
observed that the right to live with dignity and the right of privacy both are recognized as
dimensions of Article 21 of the Constitution of India.

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PRAYER

In view of the above facts and circumstances of the case, issues raised, arguments
advanced, authorities cited, it is most humbly prayed before this Hon’ble Court that, this
Hon’ble Court may graciously be pleased to:-

1. Dismiss the writ petition

2. In the alternative declare and adjudge:
(a) That the respondents have not violated the fundamental rights of the LGBT
community.
(b) The respondent are not liable for violating same-sex relationships.

And;

And For this act of kindness the respondent as in duty bound shall ever pray.

Place: Pune S/d-

Date: 03/04/2023 Moot counsel for the respondent

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