MEMORIAL for PETITIONER ARGUMENTS ADVANCED

I. WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE

BEFORE THE SUPREME COURT OF KINDIA?

The expression ‘Public Interest Litigation’ means a legal action initiated in a court of law for
the enforcement of public interest or general interest in which the public or a class of the
community have pecuniary interest or some interest by which their legal rights or liabilities
are affected.1 It may however be emphasized that a PIL writ petition can be filed in the
Supreme court under Art. 32 only if a question concerning the enforcement of a fundamental
right is involved. It is clear on the plain language of clause (1) of Art.32 that whenever there
is a violation of a Fundamental Right, anyone can move the Supreme Court for enforcement
of such Fundamental Right. It is now established that a writ petition may be moved not only
by an aggrieved individual but also by a public spirited individual2 or a social action group,
for the enforcement of the constitutional or legal rights3 of some other person, provided such
other person is unable to approach the court for redress owing to -

a) Such person being in custody, or

b) Such person belongs to a class or group of persons who are in disadvantaged position
on account of poverty, disability or other social or economic impediment, and are
unable to enforce their rights.4

The grievance in a public interest action is about the content and conduct of Government
action in relation to the constitutional or statutory rights of segments of society and in certain
circumstances the conduct of government policies. To facilitate filing of such cases by public
minded citizens, the Court has lowered the “locus standi thresholds”.5 The relief to be
granted looks to the future and is, generally, corrective rather than compensatory which,
sometimes, it also is. The court has a more dynamic and positive role. It often does seek the
assistance of expert panels, commissioners, advisory committees etc. The relief implies
1
Janata Dal vs. H.S. Chowdhary,(1992) 4 SCC 305 : 1993 SCC (Cri) 36, as cited in Ashok Kumar Pandey vs.
State of W.B., (2004) 3 SCC 349, 356 (para 7) : AIR 2004 SC 280, applied in Neetu vs. State of Punjab, (2007)
10 SCC 614, 619 (paras 7-8). See also B. Singh (Dr.) vs. U.O.I., (2004) 3 SCC 363, 371 (para 7) : AIR 2004 SC
1923.
2
Upendra Baxi vs. state of U.P., (1981) 3 Scale 1136 (SC) : (1983) 2 SCC 308, cited in S.P. Gupta vs. Union of
India, AIR 1982 SC 149 (paras 16-17) 1981 Supp. SCC 87; Fertilizer Corp., Kamgar Union vs. Union of India,
AIR 1981 SC 344 (para 23) : (1981) 1 SCC 658 : 1981 (1) LLJ 193; Sheela Borse vs. Union of India, AIR 1986
SC 1773 (para 8) : (1986) 3 SCC 596; Waadhwa vs. State of Bihar , AIR 1987 SC 579 (para 3) : (1987) 1 SC
378.
3
Shenoy K. Ramdas vs. Chief Officer, Town Municipaal Council, Udipi, AIR 1974 SC 2177 : (1974) 2 SCC
506; Varadarajan, R. vs. Salem Municipality, AIR 1973 Mad. 55 : (1972) 2 Mad LJ 485.
4
Subhash kumar vs. State of Bihar, AIR 1991 SC 420 (paras 7-8) : (1991) 1 SCC 598
5
Ranji Thomas vs. Union of India, (2000) 2 SCC 81 : 2000 (7) Supreme 264.; Chairman & MD, BPL Ltd. vs.
S.P. Gururaja, (2003) 8 SCC 567 : AIR 2003 SC 4536.
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

affirmative action. The remedy is both imposed, negotiated or quasi-negotiated.6 In a PIL the
court can give reliefs in respect of matters which are not even specifically stated in the
pleadings with a view to render socio-economic justice and empowerment to handicapped
persons and enforce their fundamental rights. The proceedings in PIL are not adversarial but
are of cooperation and collaboration between the State and the Court.7 The Supreme Court
has permitted any person acting bona fide and having sufficient interest in maintaining an
action for judicial redress for public injury to put the judicial machinery in motion8. A person
acting bona fide and having sufficient interest in the proceeding of public interest litigation
will alone have a locus standi and can approach the Court to wipe out violation of
fundamental rights and genuine infraction of statutory provisions, but not for personal gain or
private profit or political motive or any oblique consideration.9 A writ petitioner who comes
to the court for relief in public interest must come not only with clean hands like any other
writ petitioner but also with a clear heart, clean mind and clean objective.10

In Gupta’s case11 where Upendra’s case12 was referred to, the doctrine of public interest
litigation was formulated by a bench of 7 judges in a comprehensive form, to apply to any
case of public injury arising from -

a) The breach of any public duty, or

b) The violation of some provision of the constitution, or
c) Of the law.

The Supreme Court has again explained the nature of public interest litigation in Sheela
Barse vs. Union of India13 : “The technique of public interest litigation serves to provide an
effective remedy to enforce group rights and interests.” Many a time, important public issues

6
Sheela Barse vs. Union of India, AIR 1988 SC 2211 : (1988) 4 SCC 226.
7
Gaurav Jain vs. Union of India, (1997) 8 SCC 114 (para 51) : AIR 1997 SC 3021, per K. RAMASWAMY, J.
8
Janta Dal vs. Chowdhury, H.S., (1992) 4 SCC 305 : AIR 1993 SC 892. See also Sarbananda Sonowal vs.
U.O.I., (2005) 5 SCC 665, 724-25 (para 82) : AIR 2005 SC 2920.
9
Dattaraj Nathuji Thaware vs. State of Maharashtra, (2005) 1 SCC 590, 592-93 (para 4) : AIR 2005 SC 540,
relying on Janata Dal vs. H.S. Chowdhary, (1992) 4 SCC 305 : 1993 SCC (Cri) 36 and Kazi Lhendup Dorji vs.
CBI, 1994 Supp (2) SCC 116 : 1994 SCC (Cri) 873. B. Singh (Dr.) vs. Union of India, (2004) 3 SCC 363, 369-
70 (para 4) : AIR 2004 SC 1923, following Ashok Kumar Pandey vs. State of W.B., (2004) 3 SCC 349 : AIR
2004 SC 280.
10
Dattaraj Nathuji Thaware vs. State of Maharashtra, (2005) 1 SCC 590, 592-93 (para 4) : AIR 2005 SC 540,
relying on Ramjas Foundation vs. U.O.I., 1993 Supp (2) SCC 20 : AIR 1993 SC 852 and K.R. Srinivas vs. R.V.
Premchand, (1994) 6 SCC 620.
11
Gupta, S.P. vs. Union of India, AIR 1982 SC 149 (paras 16, 20, 22) : 1981 Supp. SCC 87 – 7 Judges.
12
Upendra Baxi vs. State of U.P., (1981) 3 Scale 1136 (SC) : (1983) 2 SCC 308, cited in Gupta, S.P. vs. Union
of India, AIR 1982 SC 149 (paras 16-17) 1981 Supp. SCC 87; Fertilizer Corporation kamgar Union vs. Union
of India, AIR 1981 SC 344 (para 23) : (1981) 1 SCC 658 : 1981 (1) LLJ 193.
13
AIR 1988 SC 2211 : (1988) 4 SCC 226
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

involving interpretation of constitutional provisions are raised through PIL.14 The courts have
played their role in a constructive manner with a view to promote the welfare of the people
and strengthen the democratic fabric in the country. But relying on BALCO Employees’
Union (Regd.) vs. Union of India, the Supreme Court has again reminded that the only ground
on which a person can maintain a PIL is where there has been an element of violation of
Article 21 on human rights or where the litigation has been initiated for the benefit of the
poor and the underprivileged who are unable to come to the court due to some
disadvantage.15 The Supreme Court has also entertained petitions under Art. 32 to protect the
personal liberty of the under trials.16 In Labourers Working on Salal Hydro-Project vs. State
of Jammu and Kashmir17, BHAGWATI, J., emphasized that Public Interest Litigation is “a
strategic arm of the legal aid movement which is intended to bring justice within the reach of
the poor masses who constitute the low visibility area of humanity”. The Court emphasized
that it is a challenge and an opportunity to the Government and its officers to make basic
human rights meaningful to the deprived and vulnerable sections of the community and to
assure them social and economic justice which is the signature tune of our Constitution.18 In
Janata Dal vs. H.S. Chowdhary19, the Court has observed that the dominant object of PIL is
to ensure observance of the provisions of the Constitution or the law which can be best
achieved to advance the cause of community or disadvantaged groups and individuals or
public interest by permitting any person, having no personal gain or private motivation or any
other oblique consideration but acting bona fide and having sufficient interest in maintaining
an action for judicial redress for public injury to put the judicial machinery in motion. In PIL
cases the court can fashion any relief to the victims.

14
S.P. Gupta vs. Union of India; : Bandhua Mukti Morcha vs. Union of India, AIR 1984 SC 802 : (1984) 3 SCC
161; : Sheela Barse vs. State of Maharashtra, (1983) 2 SCC 96 : AIR 1983 SC 378.
15
Villianur Iyarkkai Padukappu Maiyam vs. Union of India, (2009) 7 SCC 561 : (2009) 8 JT 339.
16
The Supreme Court under Trial : Undertrials and the Supreme Court, (1980) 1 SCC (J.) 35. ; Sheela Barse vs.
State of Maharashtra, AIR 1983 SC 378 : (1983) 2 SCC 96; Hussainara Khatoon vs. State of Bihar, 1979 SCR
(3) 532 : “The poor and the unprivileged sections in their contact with the legal system have always been on the
wrong side of the law, the law is regarded by them as something mysterious and forbidding-always taking
something away from them and not as a positive and constructive social device for changing the socio economic
order and improving their life conditions by conferring rights and benefits on them. The result is that the legal
system has lost its credibility for the weaker sections of the community.”
17
AIR 1984 SC 177 : (1983) 2 SCC 181, the pitiable condition of the labourers working on the project was
brought to the notice of the Supreme Court by a social organisation., relying on People’s Union for Democratic
Rights vs. Union of India, AIR 1982 SC 1473 ; Sanjit Roy vs. State of Rajasthan, AIR 1983 SC 328 : (1983) 1
SCC 525; D S Nakara vs. Union of India.
18
AIR 1984 SC 811
19
AIR 1993 SC 892: (1992) 4 SCC 305.
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

In Gaurav Jain vs. Union of India20, a question was raised concerning rehabilitation of the
children of prostitutes. The Supreme Court issued suitable directions for the purpose and thus
observed -

a) Segregating children of prostitutes by locating separate schools and providing

separate hostels, would not be in the interest of such children.
b) Once children are born to prostitutes, it is in the interest of such children and of
society at large, that the children of prostitutes should not be segregated from their
mothers and be allowed to mingle with others and become part of the society.

Therefore it is humbly submitted before this Hon’ble Court that the PIL filed by “The Pro
Bono Girls’ Association” under Article 32 of the Constitution of Kindia is maintainable
because it involves the enforcement of the fundamental rights of the sex workers as well as
their children and also the petitioner has acted bona fide with a view to vindicate the cause of
justice. So directions must be given by the Court where the law is silent and inaction would
result in violation of fundamental rights or other legal provisions21.

II. WHETHER PROSTITUTION SHALL BE LEGALISED AND REGULARISED IN

FURTHERANCE OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION OF
KINDIA

A. IN FURTHERANCE OF ARTICLE 14 OF THE CONSTITUTION OF KINDIA

Equality is one of the magnificent corner-stones of Indian democracy.22 The doctrine of

equality before law is a necessary corollary of Rule of law which pervades the Indian
Constitution.23 Article 14 however entails that, “equals should be treated alike and unequals
should be treated differently. In other words persons who are in like circumstances should
only be treated equally. Because if people are not in like circumstances then treating them
equally would amount to manifest injustice.24 The Constitution is wedded to the concept of

20
AIR 1997 SC at 817 : SCC 309 ( Ranganath Mishra, M.N. Venkatachaliah and P.B. Sawant, JJ.).
21
Narmada Bachao Andolan vs. Union of India, (2000) 10 SCC 664, 762 (para 231) : 2000 Supp (2) JT 6.
22
Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477.
23
Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C. 34
24
Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477 ; Ashutosh Gupta v. State of Rajasthan, (2002) 4
S.C.C 34
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

equality.25 This means that even a Constitutional amendment offending the right to equality
will be declared invalid. Neither parliament nor the state legislature can transgress the
principle of equality. Art. 14 enjoins the state to take into account de facto inequalities which
exist in the society and to take affirmative action by way of giving preference to the socially
and economically disadvantaged persons or inflicting handicaps on those more
advantageously placed, in order to bring about real equality.26 Equal protection requires
affirmative action by the state towards unequals by providing facilities and opportunities.27
The basic principle underlying Article 14 is that law must operate equally on all persons
under like circumstances.28 Equality before law is co-relative to the concept of rule of law for
all round evaluation of healthy social order.29 A basic postulate of the rule of law is that
“justice should not only be done but it must also be seen to be done.” Reasonableness and
fairness is the heart and soul of Art. 14 of the Constitution.30 The reasonableness is to be
judged with reference to the object of the legislation and not moral considerations, 31 of
course, there may be cases where gross immorality of measure may condemn the legislation
as arbitrary or irrational.32 The Court by evolving the doctrine of protective discrimination
intended to lay a law that in terms of our Constitutional scheme no group of persons should
be held to be more equal than the other group.33 Legislation should not only be assessed on
its proposed aims but rather than implications and the effects. The bottom line in this behalf
would be a functioning modern democratic society which ensures freedom to pursue varied
opportunities and options without discriminating on the basis of sex, race, caste or any other
like basis.34 But where the statute shows shows on the face of it that the legislature made no
attempt at all to make a classification but singled out a particular individual or class without
having any difference peculiar to that individual or class, the presumption of reasonableness

25
KeshavanandaBharati v. State of Kerala, A.I.R. 1973 S.C. 1461
26
Indra Sawhney vs. Union of India, AIR 1993 SC 477 (paras 4, 365, 397) : 1992 Supp. (3) SCC 217 – 9 Judge
Bench.; Kailash Chand Sharma vs. State of Rajasthan, (2002) 6 SCC 562, 592 (para 48) : AIR 2002 SC 2877;
E.V. Chinnaiah vs. State of A.P., (2005) 1 SCC 394, 425 (para 79) : AIR 2005 SC 162.
27
Panchayat Varga Sharmajivi Samuadaik Sahakari Khedut Cooperative Society vs. Haribhai Mevabhai, (1996)
10 SCC 320 (para 10) : AIR 1996 SC 2578
28
M. Nagaraj vs. Union of India, (2006) 8 SCC 212, 270 (para 106) : (2006) 8 SLT 1
29
Dalmia Cement (Bharat) Ltd. vs. Union of India, (1996) 10 SCC 104 (para 18).
30
Delhi Development Authority vs. Joint Action Committee, Allottee of SFS Flats, (2008) 2 SCC 672, 692
(para 43)
31
Garg R.K. vs. Union of India, AIR 1981 SC 2318 (para 17) : (1981) 4 SCC 676 C.B. [ Bearer –bond Case]
32
Garg R.K. vs. Union of India, AIR 1981 SC 2138 (para 17) : (1981) 4 SCC 676 C.B. [ Bearer-bond Case]
33
Nair Service Society vs. State of Kerala, (2007) 4 SCC 1, 25-26 (para 47) : AIR 2007 SC 1274, relying on
T.M.A. Pai Foundation vs. State of Karnataka, (2002) 8 SCC 481; P.A. Inamdar vs. State of Maharashtra,
(2005) 6 SCC 537 : AIR 2005 SC 3226; Indra Sawhney vs. Union of India; 1992 Supp (3) SCC 217 : 1992
SCC; Ashok Kumar Thakur vs. State of Bihar, (1995) 5 SCC 403 : AIR 1996 SC 75.
34
Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1, 15 (paras 37 and 38).
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

in favour of the legislature is instantly rebutted and the person challenging the statute cannot
be called upon to adduce further or external evidence to discharge his onus.35 In such a case,
the presumption of constitutionality is of no avail and the court is bound to invalidate the
statute as violating the guarantee of equal protection.36 Right to self-determination is an
important offshoot of gender justice discourse. It is their life; subject to constitutional
statutory and social interdicts a citizen of India should be allowed to live her life on her own
terms.37At the same time, security and protection to carry out such choice or option
specifically, and state of violence free being generally, is another tenet of the same
movement. Privacy rights prescribe autonomy to choose profession whereas security
concerns texture methodology of delivery of this assurance. But it is a reasonable proposition
that the measures to safeguard such a guarantee of autonomy should not be so strong that the
essence of the guarantee is lost. State protection must not translate into censorship.38 Instead
of putting curbs on women’s freedom, empowerment would be a more tenable and socially
wise approach. This empowerment should reflect in the law enforcement strategies of the
State as well as modelling done on this behalf. Also with the advent of modern state, new
methods of security must be developed.

The classification must be founded on an intelligible differentia which distinguishes persons

or things that are grouped together from the others left out of the group. The corollary that
also follows is that person or things grouped together are ‘equals’ for the purpose of
classification. Henceforth, if a classification is not proved on the touchstone of the principle
whether the classification is reasonable having an intelligible differentia and a rational basis
germane to the purpose, the classification has to be held as arbitrary and discriminatory.39

Now in this case, the classification of sex workers does not fall under this classification. Thus
the “test of intelligible differentia” failed. The differentia which is adopted as the basis of the
classification must have a rational or reasonable nexus with the object sought to be achieved
by the statute in question40. The plain reading of Section 370 of the kindian Penal Code

35
State of Bombay vs. Balasara, 1951 SCR 682 (708) : AIR 1951 SC 318; Ram Prasad Narayan Sahi vs. State of
Bihar, 1953 SCR 1129 : AIR 1953 SC 215; State of Rajasthan vs. Manohar Singhji, 1954 SCR 996 : AIR 1954 SC
297; K.R. Lakshmanan (Dr.) vs. State of T.N., (1996) 2 SCC 226 (para 47) : AIR 1996 SC 1153
36
Ameeroonissa Begum vs. Mehboob Begum, 1953 SCR 404 (417) : AIR 1953 SC 91.
37
Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1.
38
Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1, 15 (paras 46, 47, 50 and 51).
39
Sube Singh v. State of Haryana, (2001) 7 S.C.C. 545
40
Supra note 25; LaxmiKhandsari v. State of U.P., A.I.R. 1981 S.C. 873; State of Haryana v. Jai Singh, (2003) 9
S.C.C. 114; Welfare Association A.R.P. v. Ranjit P. Gohil, (2003) 9 S.C.C. 358; see Javed v. State of Haryana,
(2003) 8 S.C.C. 369.
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

makes it clear that it recognises prostitution itself as exploitation and thus endangers sex
workers instead of protecting them from sexual exploitation. Therefore, there is no reasonable
nexus between the classification and the purpose that it seems to achieve, and henceforth
Prostitution should be legalised in furtherance of Article 14 of the Constitution of Kindia.

B. IN FURTHERANCE OF ARTICLE 19(1) (G) OF THE CONSTITUTION OF

KINDIA

Article 19(1) (g) of the Constitution entails freedom of profession, trade, business and these
freedom mean that every citizen has the right to choose his own employment or to take up
any trade. The fundamental right guaranteed in Art. 19(1) (g) as comprehensive as possible
and to include all avenues and modes through which a person earns his livelihood. If by a
statutory provision the right of a person to carry on his business is affected, he may in his
own right maintain an action. A person must be held to have access to justice if his right in
any manner whether to carry on business is infringed or there is threat to his liberty. Access
to justice is a human right.41

Decency or morality is not confined to sexual morality alone. Decency indicates that the
action must be in conformity with the current standards of behaviour or propriety. 42 The
question whether an utterance is likely to undermine decency or morality is to be determined
with reference to the probable effects it may have upon the audience to which it is
addressed.43 The age, culture44, and the like of the audience thus becomes a material question.
The test of obscenity is whether the publication, read as a whole,45 has a tendency to deprave
and corrupt those whose minds are open to such immoral influence and into whose hands a
publication of this sort may fall. Hence, though it is permissible to place a total ban
amounting to prohibition on any profession, occupation, trade or business subject to

41
Tashi Delek Gaming Solutions Ltd. vs. State of Karnataka, (2006) 1 SCC 442 (paras 34 and 37), relying on
Calcutta Gas Co. (Proprietary) Ltd. vs. State of W.B.., 1962 Supp (3) SCR 1 : AIR 1962.; Dwarka Prasad
Agarwal vs. B.D. Agarawal, (2003) 6 SCC 230.
42
Ramesh Yeshwant Prabhoo (Dr.) vs. Prabhakar Kashinath Kunte, (1996) 1 SCC 130 (paras 28 and 29) : AIR
1996 SC 1113, relying on Knuller (Publishing, Printing and Promotions) Ltd vs. Director of Public
Prosecutions, (1972) 2 All ER 898, at 905 : (1972) 3 WLR 143.
43
Ranjit D. Udeshi vs. State of Maharashtra, AIR 1965 SC 881 (885) : (1965) 1 SCR 65, condemning ‘Lady
Chatterley’s Lover’ as ‘obscene’.
44
Rajani Kant Verma vs. State of Bihar, AIR 1958 All. 360
45
State vs. Ramanand Tiwari, AIR 1956 Pat. 188 (195) : 1956 BLJR 612
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

satisfying the test of being reasonable in the interest of general public, yet the banning of the
slaughter of cow progeny is not a prohibition but only a restriction.46

The Court cannot impose a restriction on the freedom of trade.

Moreover a ‘law’ as per this context, postulates a law which is otherwise valid. Hence, any
imposition, which restricts a citizen’s right to carry on an occupation, trade or business must,
accordingly, be held to be invalid.47 Restrictions can be imposed by subordinate legislation
executive order,48 such as a circular or policy decision in terms of Art. 162 of the Constitution
or otherwise. Such a law must be one enacted by the legislation.49 It is further humbly stated
that in order to constitute a ‘reasonable’ restriction , both the law as well as any order made
there under must satisfy the test of reasonableness.50 A restriction, to be permissible under
Art. 19(6), has to be commensurate with the danger posed. The word “occupation” has a wide
meaning such as any regular work, profession, job, principal activity, employment, business,
or a calling in which an individual is engaged. The object of using four analogous and
overlapping words in Art. 19(1)(g) is to make the guaranteed right as comprehensive as
possible to include all the avenues and modes through which a man may earn his livelihood.
The guarantee takes into its folds any activity carried on by a citizen of India to earn his
living.51 The freedom guaranteed under Art. 19(1)(g) is valuable and cannot be violated on
the grounds which are not established to be in public interest or just on the basis that it is
permissible to do so. For placing a complete prohibition on any professional activity, there
must exist some strong reason for the same with a view to attain some legitimate object and
non-imposition of such prohibition might result in jeopardizing or seriously affecting the
interest of the people in general. Otherwise, it would not be a reasonable restriction.52

In order to determine whether total prohibition would be reasonable, the court has to balance
the direct impact on the fundamental right of the citizen thereby against the greater or social

46
State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 (paras 78, 79, 122 and 127) :
(2005) 12 JT 580.
47
Yasin Mohammad v. Town Area Committee, A.I.R. 1952 S.C. 115.
48
Khoday Distilleries Ltd. v. State of Karnataka, (1995) I S.C.C. 574; Khoday Distilleries Ltd. v. Registrar
General, Supreme Court of India, (1996) 3 S.C.C. 114
49
State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 S.C.C. 545.
50
Oudh Sugar Mills v. Union of India, A.I.R. 1970 S.C. 1970.
51
Sodan Singh vs. New Delhi Municipal Committee, (1989) 4 SCC 155, affirmed in T.M.A. Pai Foundation vs.
State of Karnataka, (2002) 8 SCC 481 : AIR 2003 SC 355.
52
B.P. Sharma vs. Union of India, (2003) 7 SCC 309; U.P. Power Corporation Ltd. vs. Sant Steels & Alloys (P.)
Ltd., (2008) 2 SCC 777, 802 (para32).
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

interest sought to be ensured.53 Occupation would be an activity of a person undertaken as a

means of livelihood or a mission in life.54 Now in the present case, sex work being legal, the
sex workers have fundamental right under Art. 19(1)(g) to carry out such profession because
they are doing it for a living and also due to abject poverty.

C. IN FURTHERANCE OF ARTICLE 21 OF THE CONSTITUTION OF KINDIA

Article 21 which is one of the luminary provisions in the Constitution and is a part of the
scheme for fundamental rights occupies a place of pride in the Constitution. The article
mandates that no person shall be deprived of his life and personal liberty except according to
the procedure established by law. This sacred and cherished right i.e., personal liberty has an
important role to play in the life of every citizen. Life or personal liberty includes a right to
live with human dignity. There is an inbuilt guarantee against torture or assault by the State
and its functionaries.55 Right to life, enshrined in Art. 21 means something more than survival
or animal existence.56 It would include the right to live with human dignity.57 It would
include all those aspects of life which go to make a man’s life meaningful, complete and
worth living.58 That which alone can make it possible to live must be declared to be an
integral component of the right to live.59 The right to life guaranteed under Art. 21 of the
Constitution embraces within its sweep not only physical existence but the quality of life. If
any statutory provision runs counter to such a right, it must be held to be unconstitutional and
ultra vires the Part III of the Constitution.60 The Article embodies the concept of ‘distributive
justice’ which connotes, inter alia, the removal of economic inequalities and rectifying the
injustice resulting from dealings or transactions between unequals in society. This may be
achieved by the State by lessening of inequalities. There can be no justice without equality.
Article 14 guarantees the fundamental right to equality before the law on all persons. The
concept of welfare State would remain in oblivion unless social justice is dispensed.
Dispensation of social justice and achieving the goals set forth in the Constitution are not

53
Indian Handicrafts Emporium vs. Union of India, (2003) 7 SCC 589, 605 (para 38) : AIR 2003 SC 3240
54
T.M.A Pai Foundation vs. State of Karnataka, (2002) 8 SCC 481, 535 (paras 20 and 25) affirming Sodan
Singh vs. New Delhi Municipal Committee, (1989) 4 SCC 155, and partly overruling Unni Krishna, J.P. vs.
State of A.P., (1993) 1 SCC 645.
55
Munshi Singh Gautam vs. State of M.P., (2005) 9 SCC 631, 637 (para 4) : AIR 2005 SC 402
56
State of Maharashtra v. Chandrabhan, AIR 1983 SC 803 (paras 1, 20).
57
Francis Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746 (para 3).
58
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
59
Olga Tellis v. Bombay Corpn., AIR 1986 SC 180 (paras 33-34).
60
Confederation of Ex-Serviceman Associations v. Union of India, (2006) 8 SCC 399, 429 (para 61).
New Reviera Coop. Housing Society v. Special Land Acquisition Officer, (1996) 1 SCC 731 (para 8).
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

possible without the active, concerted and dynamic efforts made by the person concerned
with the justice dispensation system.

There is no doctrine of ‘State necessity’ in India under Article 21. In each case where a
person complains of the deprivation of his life or personal liberty, the court, in the exercise of
its constitutional power of judicial review, has to decide whether there is a law authorising
such deprivation and whether, in the given case, the procedure prescribed by such law is
reasonable, fair and just, and not arbitrary, whimsical and fanciful. 61 Any law depriving a
person of his livelihood must meet the challenge of Art. 14, 19 and 21 of the Constitution.62
Hence the procedure prescribed by such law must be just, fair and reasonable and not
arbitrary, fanciful, oppressive, vague, unfair or unreasonable.63 Enjoyment of quality life is
the essence of the guaranteed right under Article 21 of the Constitution.64 Right to reputation
is a facet of the right to life of a citizen under Article 21 of the Constitution. The right to
dignity, which is recognised as guaranteed by Art. 21 of the Constitution insofar as it is
infringed by withholding of the means of livelihood by any means or process whatsoever
would attract Art. 21.65 Hence the action of the state has to be based on reasonableness and it
cannot deprive the basic human rights afforded under Constitution, more so under Art. 21. 66
It is a basic right of a female to be treated with decency and proper dignity and the search of a
woman by a person other than a female officer is violative of it. 67 The trend in the Supreme
Court is that when constitutionality of a statute is challenged as arbitrary or unreasonable, the
Court has to test its validity on the anvil of Arts. 14, 19 and 21, read together.68

The Supreme Court in ‘Unni Krishnan vs. State of A.P69’ stated that “Right to health and
medical aid of workers”70 falls within the ambit of Art. 21, since the expression ‘personal
liberty’ is of the widest amplitude. Now in this case, the sex workers should be provided with

61
Francis Coralie Mullin vs. Union Territory Delhi, Administrator, AIR 1981 SC 746 (para 3) : 1981 1 SCC 608
62
Yadav, D.K. vs. J.M.A. Industries Ltd., (1993) 2 UJSC 348 (paras 10, 14) : 1993 (3) SCC 259 : 1993-II LLJ
696 – 3-Judges.
63
Maneka Gandhi vs. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248; Inderjeet vs. State of U.P., AIR
1979 SC 1867 : (1980) 1 SCC 255; Francis Coralie Mullin vs. Union Territory, AIR 1981 SC 746 (para 3) :
(1981) 1 SCC 608.
64
Hinch Lal Tiwari vs. Kamla Devi, (2001) 6 SCC 496, 501 (para 13) : AIR 2001 SC 3215.
65
O. Konavalov vs. Commander, Coast Guard Region, (2006) 4 SCC 620, 633 (para 20) : (2006) 3 JT 567.
66
O. Konavalov vs. Commander, Coast Guard Region, (2006) 4 SCC 620, 633 (para 20) : (2006) 3 JT 567.
67
State of Punjab vs. Baldev Singh, (1999) 6 SCC 172 (para 13) : AIR 1999 SC 2378.
68
Minerva Mills vs. Union of India, AIR 1980 SC 1789 : (1980) 2 SCC 591; Olga Tellis vs. Bombay Corp.,
AIR 1986 SC 180 : (1985) 3 SCC 545; D.T.C. vs. Mazdoor Union, AIR 1991 SC 101 (para 258-59).
69
Unni Krishnan, J.P. vs. State of A.P., (1993) 1 SCC 645 : AIR 1993 SC 2178.
70
Consumer Education & Research Centre vs. Union of India, (1995) 3 SCC 42; Research Foundation for
Science (13) vs. Union of India, (2005) 13 SCC 661, 664 (para 12) : (2003) 8 Scale 118.
MEMORIAL for PETITIONER ARGUMENTS ADVANCED

health insurance as well as their medical fitness should be given paramount consideration.
Therefore prostitution should be legalised and regularised from the standpoint of Article 21
of the Constitution of Kindia.