TABLE OF CONTENTS

INDEX OF AUTHORITIES 02-05

 LEGISLATION
 CASES REFERRED
 BOOKS REFERRED
 LAW LEXICON AND DICTIONARIES
 LEGAL DATABASES

LIST OF ABBREVIATIONS 06-07

STATEMENT OF JURISDICTION 08

STATEMENT OF FACTS 09

ISSUES RAISED 10

SUMMARY OF ARGUMENTS 11-12

ARGUMENTS ADVANCED 13-25

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT

IS MAINTAINABLE?
II. WHETHER THE PUNISHMENT AWARDED TO JOSEPH BY THE TRIAL COURT
SERVED THE PURPOSE OF JUSTICE?
III. WHETHER SECTION 377 OF KINDIAN PENAL CODE, 1860, IS
CONSTITUTIONALLY VALID?

PRAYER 26

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 INDEX OF AUTHORITIES

LEGISLATION

1. The Constitution of India, 1950.

2. The Indian Penal Code, 1860.

CASES REFERRED

1. A.K. Gopalan v. State of Madras [AIR 1950 SC 27]

2. A.V. Papayya Sastry v. Government of Andhra Pradesh, [AIR 2007 SC 1546]
3. Aero Traders Private Limited v. Ravinder Kumar Suri[AIR 2005 SC 15]
4. Budhan Choushary and Ors. V. State of Bihar [1955 CriLJ 374]
5. Calvin Francis v. Orissa [1992 (2) Crimes 455]
6. Chandrakant Kalyandas Kakodkar v. State of Maharashtra [AIR 1970 SC 1390]
7. Collector of Customs v. Nathella Sampathu Chetty [1983 ECR 2198D (SC)]
8. Commissioner of Central Excise Jamshedpur v. Dabur (India) Ltd., [(2005) 3 SCC
646]
9. Competition Commission of India v. Steel Authority of India Ltd.,[(2010) 10 SCC
744]
10. Council of Scientific and Industrial Research v. K. G. S. Bhatt, [AIR 1989 SC 1972]
11. DCM v. Union of India, [AIR 1987 SC 2414]
12. De Armond v. State, Okl. Cr. [285 P.2d 236]
13. Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte [AIR 1996 SC 1113]
14. Gobind v. State of M.P [AIR 1975 SC 1378]
15. Govt. of A.P. v. Smt. P. Laxmi Devi[AIR 2008 SC 1640]
16. H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth [(1954) 1 SCR 1005]
17. J.P. Bansal v. State of Rajasthan [(2003) 5 SCC 134]
18. Jagmohan Singh v. State of U.P.[(1973) 1 SCC 20]
19. Keshavan Madhava Menon v. The State of Bombay [1951CriLJ 680]
20. Kharak Singh v. State of UP and others[(1964) 1 SCR 332]
21. Lawrence v. Texas [539 U.S. 558 (2003)]
22. Laxmi Khandsari v. State of Uttar Pradesh [AIR 1981 SC 873]
23. M. C. Mehta v. Union of India[AIR 2004 SC 4618]
24. Madhu Limaye v. Sub-Divisional Magistrate, Monghyr & Ors. [AIR 1971 SC 2486]
25. Mafatlal Industried Ltd. And Ors. V Union of India and Ors., [1997(89) ELT 247
(SC)]
26. Maneka Gandhi v. Union of India[AIR 1978 SC 597]
27. Mathai Joby v. Georg [(2010) 4 SCC 358]
28. Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee [AIR 2000 SC 492]
29. Mihir alias Bhikari Chauhan Sahu v. State, [1992 Cri LJ 488]
30. Mohammed Shahabuddin v. State of Bihar, [(2010) 4 SCC 653]

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 31. Mohan Choudhary v. Chief Commissioner, Tripura [AIR 1964 SC 173]
32. Mr. X v. Hospital Z[(1998) 8 SCC 296]
33. Municipal Committee, Hoshiarpur v. Punjab SEB, [(2010) 13 SCC 216]
34. N. Suriyakala v. A. Mohandoss, [(2007) 9 SCC 196]
35. Namit Sharma v. Union of India, [(2013) 10 SCC 359]
36. Panchanan Misra v. Digambar Mishra, [AIR 2005 SC 129]
37. Pritam Singh v. State [AIR 1950 SC 169]
38. R v. Hicklin [L.R. 3 Q.B. 360]
39. Ramcharitra v. High Court, Patna [AIR 1976 SC 226]
40. Ramkrishna Dalmia v. Justice Tendolkar and Ors., [AIR 1958 SC 53]
41. Ranjit D. Udeshi v. State of Maharashtra [AIR 1965 SC 881]
42. Seema Silk and Sarees v. Directorate of Enforcement [(2008) 5 SCC 580]
43. Shivanand Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, [(2008) 13 SCC 323]
44. Southern Petrochemical Industries v. Electricity Inspector [(2007) 5 SCC 447]
45. State of H. P. V. Kailash Chand Mahajan, [AIR1992 SC 1277]
46. State v. Parmeshwaran Subramani [(2009) 9 SCC 724]
47. Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. [AIR 2014 SC 563]
48. Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors[(2014) 1 SCC 1]
49. Suresh Kumar Koushal v. Naz Foundation [(2014) 1 SCC 1]
50. Sushil Kumar Sharma v. Union of India and Ors. [(2005) 6 SCC 281]
51. Tamil Nadu Electricity Board v. Status Spinning Mills [(2008) 7 SCC 353]
52. Thangal Kunu Musaliar v. M. Venkatachalam Potti, Authorised Official and Income
Tax Officer and Anr., [(1956) 29 ITR 349 (SC)]
53. Union of India v. Era Educational Trust, [AIR 2000 SC 1573]
54. Zahira Habibullah Sheikh v. State of Gujarat, [AIR 2004 SC 3467]

BOOKS REFERRED

1. V.N. Shukla, CONSTITUTION OF INDIA (12th ed., 2013).

2. Dr. D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th ed.,
2007).
3. Dr. D.D. Basu, CONSTITUTIONAL LAW OF INDIA, (8th ed., 2009).
4. P.M. Bakshi, THE CONSTITUION OF INDIA, (14th ed., 2017).
5. Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA, (51st ed., 2014).
6. H.M. Seervai, CONSTITUTIONAL LAW OF INDIA, (4th ed., 2010).
7. R.S. Bedi, , THE CONSTITUION OF INDIA, (10th ed., 2013).
8. Dr. S.C. Kashyap, CONSTITUTIONAL LAW OF INDIA, (1st ed., 2008).
9. M.P. Jain, INDIAN CONSTITUTIONAL LAW, (7th ed., 2015).
10. A.N. Saha, CRIMINAL REFERENCE, (6th ed., 2009).
11. Dr. Sri Hari Singh Gaur, THE PENAL LAW OF INDIA, (11th ed., 2000).
12. Bholeshwar Nath, INDIAN PENAL CODE, 1860, (3rd ed.,2007).

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 13. Dr. M.C. Jain Kagzi, THE CONSTITUTION OF INDIA, (6th ed., 2001).
14. Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, (34th ed., 2014).
15. K.D. Gaur, TEXTBOOK ON INDIAN PENAL CODE, (5th ed., 2015).
16. K.D. Gaur, CRIMINAL LAW: CASES AND MATERIALS, (7th ed., 2014).

LAW LEXICON AND DICTIONARIES

1. Bryan A. Garner, BLACK‟S LAW DICTIONARY, (2nd ed., 2004).

2. Justice R.P. Sethi, SUPREME COURT ON WORDS AND PHRASES, (2nd ed.,
2004).
3. P. Ramanatha Aiyar, LAW LEXICON, (3rd ed., 2005).
4. Webster‟s UNIVERSAL DICTIONARY, (1st ed., 1993).

LEGAL DATABASES

1. www.manupatra.com
2. www.indiancaselaws.org
3. www.indlaw.com
4. www.indiankanoon.org
5. www.judic.nic.in
6. www.lexisnexis.com
7. www.scconline.co.in

IMPORTANT DEFINITION:

1. The appellant for the purpose of this memorandum shall stand for “Jimmy”.
2. The respondents for the purpose of this memorandum shall stand for the “Union of
Kindia”.

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 LIST OF ABBREVIATIONS

AIR All India Reporter

AP Andhra Pradesh

Art. Article

Bom. Bombay

Cal. Calcutta

CHN. Calcutta High Court Notes

CrLJ Criminal Law Journal

CrPC Criminal Procedure Code

Ed. Edition

HC High Court

Hon’ble Honourable

ILR Indian Law Reporter

IPC Indian Penal Code

J. Justice

Ltd. Limited

MP Madhya Pradesh

NOC Notes Of Cases

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Ors. Others

Pat. Patna

QB Queen’s Bench

S. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

UP Uttar Pradesh

v. Versus

Vol. Volume

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 STATEMENT OF JURISDICTION

The Respondent humbly submits to the jurisdiction of this Hon’ble Supreme Court of Kindia
as invoked by the Appellant.

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 STATEMENT OF FACTS

1) The material case arises out of a Special Leave Petition filed by Jimmy against the
Union of Kindia before the Supreme Court of Kindia to seek stringent punishment for
Joseph as well as to strike down Section 377, Kindian Penal Code, 1860.

A. BACKGROUND:
2) That Union of Kindia has a socio-legal system similar to that of India.
3) That the Constitution of Kindia guarantees its citizens the right to privacy as their
fundamental right and aims at protecting the rights of LGBT Groups and
Homosexuals.

B. RELATIONSHIP BETWEEN ROB AND DILLON:

4) That Jimmy and Jonny are citizens of Kindia and works as a Legal Assistant and
Marketing Manager respectively in Orient Pvt. Ltd.
5) That they indulged carnal intercourse with each other against the order of nature. This
was opposed by their family and Jimmy’s Uncle Alexander was agitated by their
relationship, calling it a disgrace upon the society.

C. THE INCIDENT OF EMASCULATION:

6) That Mr. Alexander emasculated Jimmy thereby causing him grievous hurt.
7) That Jimmy approached the Trial Court for penalising Alexander for grievous hurt
and for violating his LGBT rights. The Trial Court awarded Alexander imprisonment
of Seven years and imposed a fine of Rs. 50,000.
8) That on appeal to the High Court, the decision of the Trial Court was maintained.

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D. MATTER BEFORE THE COURT:

9) Hence, aggrieved by the decision of the High Court, Jimmy filed a SLP challenging
the validity of Section 377 of Kinidan Penal Code, 1860, and praying for the award of
more stringent punishment to Alexander.

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 ISSUES RAISED

ISSUE I

WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT

IS MAINTAINABLE?

ISSUE II

WHETHER THE PUNISHMENT AWARDED TO JOSEPH BY THE TRIAL COURT

SERVED THE PURPOSE OF JUSTICE?

ISSUE III

WHETHER SECTION 377 OF IN KINDIAN PENAL CODE, 1860, IS

CONSTITUTIONALLY VALID?

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 SUMMARY OF ARGUMENTS

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE?

Article 136 empowers the Supreme Court to grant in discretion Special leave to Appeal from
any judgement, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India. It vests in the Supreme Court a
discretionary power to be exercised for satisfying the demands of justice under exceptional
circumstances. Such power is to be exercised with caution and in accordance with law and set
legal principles. In the instantaneous matter SLP is not maintainable as Special Leave cannot
be granted when substantial justice has been done and no exceptional or special
circumstances exist for case to be maintainable. The practice of non-interference in the
decisions of lower courts is followed by the Supreme Court when it is of the view that all
relevant factors have been taken into consideration as in the instantaneous matter.

II. WHETHER THE PUNISHMENT AWARDED TO JOSEPH BY THE TRIAL

COURT SERVED THE PURPOSE OF JUSTICE?
It is humbly submitted before this Hob’ble Court that Joseph was awarded maximum
punishment under the provision of law and that his punishment should not be increased
since the court [A] should not interfere with the decisions of the lower court unless there
is a mistake of law and [B] Joseph was sufficiently penalised.

III. WHETHER SECTION 377 OF KINDIAN PENAL CODE, 1860, IS

CONSTITUTIONALLY VALID?

It is contended that Section 377 is constitutionally valid it does not violate any Fundamental
Rights of the citizens. The classification of sexual acts based on whether they are in
consonance with the ordinary course of nature or not is founded on an intelligible differentia
and there is rational nexus between such classification and objective sought by the legislation.

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Further, Section 377 is not arbitrary as mere possibility of abuse of power does not render a
legislation arbitrary. The state has compelling and legitimate interest in the form of
maintaining public health, decency and morality by enforcing the provisions of Section 377.
Secondly, it is contended that Section 377 does not violate one’s Freedom of speech and
expression u/a 19 as Article 19(2) permits imposition of restrictions in the interest of decency
and morality. Lastly, Section 377 does not violate Article 21 as it qualifies the test of
substantive due process and is in the interest of public health. It is also contended that Right
to Privacy u/a 21 is not absolute and it may be curtailed by following due process, rendering
Section 377 constitutional.

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 ARGUMENTS ADVANCED

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE

THIS COURT IS MAINTAINABLE?

It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble High
Court is not maintainable under Article 136 of the Constitution of Kindia. Article 136
empowers the Supreme Court to grant in discretion Special leave to Appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India.1

It is humbly submitted that SLP is not maintainable as Special Leave cannot be granted when
substantial justice has been done and no exceptional or special circumstances exist for case to
be maintainable [A]. Also, repealment of Section 377 is a legislative task [B].

A. NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXIST AND

SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE.

It is most humbly submitted before this Hon’ble Court that the SC will not interfere with the
concurrent finding of the courts below unless of course the findings are perverse or vitiated
by error of law or there is gross miscarriage of justice.

Article 136 does not confer a Right of Appeal, but merely, a discretionary power to the
Supreme Court to be exercised for satisfying the demands of justice under exceptional
circumstances2. The SC observed in the Pritam Singh v. State3, in explaining how the
discretion will be exercised generally in granting SLP: The wide discretionary power with
which this court is invested under it is to be exercised sparingly and in exceptional cases only
and as far as possible a more or less uniform standard should be adopted in granting special
leave in the wide range of matters which can come up before it under article 136. 4
Circumspection and circumscription must induce the Court to interfere with the decision

1
Art. 136, Constitution of India, 1950.
2
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196.
3
AIR 1950 SC 169.
4
Ibid 3.

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under challenge only if the extraordinary flaws or grave injustice or other recognised grounds
are made out.5

It is contended by the respondent that the appellant must show that exceptional and special
circumstances exists and that if there is no interference, substantial and grave injustice will
result and the case has features of sufficient gravity to warrant review of the decision
appealed against on merits. Only then the court would exercise its overriding powers under
Art. 1366. Special leave will not be granted when there is no failure of justice or when
substantial justice is done, though the decision suffers from some legal errors.7

Although the power has been held to be plenary, limitless8, adjunctive, and unassailable9, in
M. C. Mehta v. Union of India10 and Aero Traders Private Limited v. Ravinder Kumar
Suri11, it was held that the powers under Article 136 should be exercised with caution and in
accordance with law and set legal principles.

B. REPEALMENT OF SECTION 377 IS A LEGISLATIVE TASK.

In the instant case, the two matters raised before this Hon’ble court are outside its
competence since the act of repealing Section 377 is matter of legislative competence and
thus court has no power to rewrite a law in the garb of judicial review. In our country, the
legislature and the judiciary have separate roles. The Judiciary dispassionately interprets law.
The Legislature can make new laws and alter old ones. The Kindian Penal Code is placed
under the Concurrent List of the Constitution, meaning that both Parliament and State
Legislatures are competent to amend it. In keeping with the federal structure of our
governance, State Legislatures may amend a central law subject to approval of the President.
Only lawmakers and not the courts could change a colonial-era law that bans homosexual
acts and makes them punishable by up to a decade in prison. The court can resort to ‘reading
down’ a law to render it constitutional, but in that direction, it cannot change the essence of
the law or create a new law that is in its opinion more desirable.12

5
Shivanand Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323.
6
M.P Jain, Indian Constitutional Law, 5776 (16th edn Lexis Nexis Butterworth 2011).
7
Council of Scientific and Industrial Research v. K. G. S. Bhatt, AIR 1989 SC 1972 ; State of H. P. V. Kailash
Chand Mahajan, AIR1992 SC 1277; Mathai Joby v. George, (2010) 4 SCC 358
8
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
9
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.
10
M.C. Mehta v. Union of India, AIR 2004 SC 4618.
11
Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15.
12
Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. AIR 2014 SC 563.

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It is submitted that the competent legislature shall be free to consider the desirability and
propriety of deleting Section 377 IPC from the statute book or amend the same.

Hence, the respondent humbly submits that the present matter is not maintainable.

II. WHETHER THE PUNISHMENT AWARDED TO JOSEPH BY THE

TRIAL COURT SERVED THE PURPOSE OF JUSTICE?

It is humbly submitted before this Hob’ble Court that Joseph was awarded maximum
punishment under the provision of law and that his punishment should not be increased since
the court [A] should not interfere with the decisions of the lower court unless there is a
mistake of law and [B] Joseph was sufficiently penalised.

A. NON-INTERFERENCE IN THE DECISION OF THE LOWER COURTS.

If it appears prima facie that the order in question cannot be justified by any judicial standard,
the ends of justice and the need to maintain judicial discipline require the Supreme Court to
intervene13; the Supreme Court in this case pointed out the errors of the High Court, but, did
not interfere in the decision of the High Court. The Supreme Court does not interfere with the
conclusion arrived at by the High Court if it has taken all the relevant factors into
consideration and there has been no misapplication of the principles of law.14

Normally, in exercising its jurisdiction under Article 136, the Supreme Court does not
interfere with the findings of the fact concurrently arrived at by the tribunal and the High
Court unless there is a clear error of law or unless some important piece of evidence has been
omitted from consideration.15 Though Article 136 is conceived in widest terms, the practice
of the Supreme Court is not to interfere on questions of fact except in exceptional cases when
the finding is such that it shocks the conscience of the court.16

13
Union of India v. Era Educational Trust, AIR 2000 SC 1573.
14
DCM v. Union of India, AIR 1987 SC 2414.
15
Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492.
16
Panchanan Misra v. Digambar Mishra, AIR 2005 SC 129.

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 B. JOSEPH WAS SUFFICIENTLY PENALISED.

In the instant matter, the Trial Court awarded seven years of imprisonment to Joseph and
imposed a fine of Rs. 50,000.17 It was in accordance to Section 325 of Kindian Penal Code in
the absence of knowledge as to the degree of hurt.

III. WHETHER SECTION 377 OF KINDIAN PENAL CODE, 1860, IS

CONSTITUTIONALLY VALID?

It is contended that Section 377 of the Kindian Penal Code18 is constitutionally valid since
[A]general rule of interpretation the presumption is always in the favour of the
constitutionality of the legislation unless proved otherwise; [B] it does not violate Right to
Equality u/a 14 and 15; [C] it does not violate Article 19 of the Constitution; and, [D] it does
not violate Article 21.

A. PRESUMPTION IS ALWAYS IN FAVOUR OF CONSTITUTIONALITY

OF A STATUTE.

It is most respectfully submitted that the presumption while dealing with constitutional
validity of any provision must be in favour of it being valid.19 It is presumed that the intention
of the legislature is always true.20 It is the obligation of the Court to promote intention of
legislature.21 Language employed in the statute is a determinative factor of the legislative
intent.22 The rule of presumption of constitutionality of laws is that when any law is under
judicial review, it is for the person challenging its constitutionality to establish its
unconstitutionality.23 The burden is on the Plaintiff to establish the invalidity of legal

17
Moot Problem ¶ 5.
18
Laws in Lexton are para materia to laws in India.
19
Namit Sharma v. Union of India, (2013) 10 SCC 359.
20
Competition Commission of India v. Steel Authority of India Ltd., (2010) 10 SCC 744.
21
Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216.
22
Mohammed Shahabuddin v. State of Bihar, (2010) 4 SCC 653; J.P. Bansal v. State of Rajasthan, (2003) 5
SCC 134; State v. Parmeshwaran Subramani (2009) 9 SCC 724.
23
Madhu Limaye v. Sub-Divisional Magistrate, Monghyr & Ors., AIR 1971 SC 2486.

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provision to such a degree to leave no reasonable doubt.24 The Apex Court in the case of
Govt. of A.P. v. Smt. P. Laxmi Devi25, held that invalidating legislation is a grave step and
should never be taken lightly.

It is submitted that the presumption is always in the favour of constitutionality of an

enactment26 and it is for the petitioner to show how his fundamental right has been infringed,
failing which, his petition will be dismissed.27 It must be presumed that the legislature
understands and correctly appreciates the need of its own people, that its laws are directed to
problems made manifest by experience and that its discriminations are based on adequate
grounds.28 It is neither in doubt nor in dispute that Clause 1 of Article 13 of the Constitution
of Kindia in no uncertain terms states that all laws in force in the territory of India
immediately before the commencement of the Constitution, in so far as they are inconsistent
with the provisions of Part III there, shall, to the extent of such inconsistency, be void. It is
submitted that public disapproval or disgust for a certain class of persons can in no way serve
to uphold the constitutionality of a statute.

The counsel on behalf of the petitioner argued that if the language of the section was plain,
there was no possibility of severing or reading it down. And so long as the law stands on the
statute book, there was a constitutional presumption in its favour. Keeping in view the fact
that the Act is a pre-constitution enactment, the question as regards its constitutionality will,
therefore, have to be judged as being law in force at the commencement of the Constitution
of Kindia.29

B. SECTION 377 DOES NOT VIOLATE RIGHT TO EQUALITY U/A 14 AND

15 OF THE CONSTITUTION.

It is contended that Section 377 of the IPC does not violate one’s Right to Equality since
[B.1] it does not violate Article 14 of the constitution and [B.2] it does not violate Article 15
of the Constitution.

24
Ibid 48.
25
AIR 2008 SC 1640.
26
Mohan Choudhary v. Chief Commissioner, Tripura, AIR 1964 SC 173.
27
Ramcharitra v. High Court, Patna, AIR 1976 SC 226.
28
Ramkrishna Dalmia v. Justice Tendolkar and Ors., AIR 1958 SC 538.
29
Keshavan Madhava Menon v. The State of Bombay, 1951CriLJ 680.

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 B.1. It does not Violate Article 14 of the Constitution.

It is contended that Section 377 of the Kindian Penal Code does not violate Article 14 of the
constitution as [B.1.a.]the classification is founded on an intelligible differentia, [B.1.b]there
is rational nexus between classification and objective sought, and [B.1.c] possibility of abuse
of power does not render a legislation arbitrary.

B.1.a. The Classification is founded On an Intelligible Differentia.

Article 14 forbids class legislation; it does not forbid reasonable classification of persons by
the Legislature for specific ends. Classification in such a case 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.30

Section 377 classifies acts based on whether they are in consonance with the ordinary course
of nature or against it.31 The section impugned includes the acts of carnal intercourse between
man and man, man and woman and woman and woman.32 The Supreme Court in the matter
between Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors 33, held that those
who indulge in carnal intercourse in the ordinary course and those who indulge in carnal
intercourse against the order of nature constitute different classes and the people falling in the
latter category cannot claim that Section 377 suffers from the vice of arbitrariness and
irrational classification.

It is contended that Section 377 is gender neutral and covers voluntary acts of carnal
intercourse against the order of nature irrespective of the gender of the person committing the
act. It does not criminalise a particular people or identity or orientation. It merely identifies
certain acts which if committed would constitute an offence and merely talks about a
particular mode of sexual activity, independent of the sex of people or sexual orientation.34
Thus, Section 377 distinguishes sexual acts from unnatural sexual offences or carnal
intercourse against the order of nature. It does not distinguish between procreative and non-
procreative sex and it is contended this classification is reasonable.

B.1.b. There is Rational Nexus between Classification and Objective Sought.

30
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873.
31
Naz Foundation v. Government of NCT of Delhi, 2010 Cri LJ 94.
32
Ibid 30.
33
Ibid 30.
34
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1, Mihir alias Bhikari Chauhan Sahu v. State, 1992
Cri LJ 488.

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It is contended that the law can make and set apart the classes according to the needs and
exigencies of the society and as suggested by experience.35 If the legislative policy is clear
and definite and as an effective method of carrying out that policy a discretion is vested by
the statute upon a body of administrators or officers to make selective application of the law
to certain classes or groups of persons, the statute itself cannot be condemned as a piece of
discriminatory legislation.36

The objective behind Section 377 is to clearly demarcate sexual activities in consonance with
the order of nature and differentiate them from activities against the order of nature, which is
necessary in cases of allegation of child sexual abuse and for complementing lacunae in the
rape laws.37 The state looks to uphold public morality and decency and it is a compelling
state interest in this matter. It is contended that deletion thereof would well open flood gates
of delinquent behaviour. If Section 377 is struck down, there will be no way the State can
prosecute any crime of non-consensual carnal intercourse against the order of nature or gross
male indecency. Thus, there is rational nexus between classification and objective sought in
the case of Section 377.

B.1.c. Possibility of Abuse of Power does not render a Legislation Arbitrary.

Arbitrariness on the possibility that a power may be abused, despite the guidelines, in the
provisions providing for such power cannot be held to be arbitrary and unreasonable.38
Classification is justified if it is not palpably arbitrary. The principle underlying the guarantee
of Article 14 is not that the same rules of law should be applicable to all persons within the
territory or that the same remedies should be made available to them irrespective of
differences of circumstances. It only means that all persons shall be treated alike both in
privileges conferred and liabilities imposed.39

The possibility of abuse of power by executive officials who are responsible for Section
377’s implementation cannot be a valid ground to contest its constitutionality since the
illtreatment of homosexuals is neither mandated by the section nor condoned by it. Hence, it

35
Ibid 33.
36
MP JAIN, INDIAN CONSTITUTIONAL LAW, 917 (7th ed. 2015).
37
Ibid 33.
38
Commissioner of Central Excise Jamshedpur v. Dabur (India) Ltd., (2005) 3 SCC 646; Sushil Kumar Sharma
v. Union of India and Ors. (2005) 6 SCC 281; Thangal Kunu Musaliar v. M. Venkatachalam Potti, Authorised
Official and Income Tax Officer and Anr., (1956) 29 ITR 349 (SC); Budhan Choushary and Ors. V. State of
Bihar, 1955 CriLJ 374; Mafatlal Industried Ltd. And Ors. V Union of India and Ors., 1997(89) ELT 247 (SC);
Collector of Customs v. Nathella Sampathu Chetty 1983 ECR 2198D (SC); H.R.E. v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Meth (1954) 1 SCR 1005.
39
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

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is contended that mere possibility of abuse of power by the responsible officials cannot be
considered as a sufficient ground for holding Section 377 arbitrary.

B.2. It does not violate Article 15 of The Constitution.

It is contended that Section 377 does not violate Article 15 of the Constitution of Kindia as
[B.2.a]it is not disproportionate and discriminatory in its impact and [B.2.b]there is
compelling state interest involved.

B.2.a. It is not Disproportionate and Discriminatory in its Impact.

Section 377 is applied on complaints by victims and there are no instances of arbitrary use or
application in situations where the terms of the section do not naturally extend to Section 377.
In more than 150 years, less than 200 persons have been prosecuted for committing offence
u/s 377 Kindian Penal Code and this should not be made a sound basis for declaring Section
377 ultra vires the constitution.40 The ill-treatment of homosexuals is neither mandated by the
section nor condoned by it and the mere fact that the section is misused by police officials
and others is not a reflection of the vires of the section.41

It is contended that the statistics remain wholly insufficient for recording a finding that
Section 377 adversely affects control of HIV/AIDS amongst the homosexual community and
that decriminalisation will reduce the number for such cases.

B.2.b. There is Compelling State Interest Involved.

The Supreme Court laid down in Gobind v. State of M.P42 that privacy claims deserve to be
examined with care and to be denied only when an important countervailing interest is shown
to be superior, or where a compelling state interest is shown. A law infringing a fundamental
privacy right must satisfy the compelling state interest test i.e., whether the state interest is of
such paramount interest as would justify an infringement of the right. 43 In such a situation,
the state interference must be justified and proportional.44

It is contended that homosexuality is considered against cultural norms of our society and
hence Section 377 is crucial for maintaining public decency and morality. 45 It is further

40
Ibid 38.
41
Ibid 38.
42
AIR 1975 SC 1378.
43
Ibid 41.
44
Ibid 41.
45
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.

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imperative to maintain public health in the general society since homosexual sexual activities
constitute High-Risk Groups (HRGs) among population prone to HIV/AIDS. It is thus
contended that since Section 377 is based on legitimate and compelling state interest, its
retention is justified and more importantly, crucial.

C. IT DOES NOT VIOLATE RIGHT TO FREEDOM OF SPEECH AND

EXPRESSION U/A 19.

It is contended that Article 19(2) provides a reasonable ground to impose restrictions on one’s
Freedom of Speech and Expression in the case of Section 377. Article 19(2) provides that
nothing 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 in the interests of the State, in
matters of public order, decency or morality among other grounds.46 It is contended that the
restrictions imposed by Section 377 are justified since it is in the interests of public decency
and morality.

The test of obscenity is whether the tendency of the matter charged as obscene is to deprive
and corrupt those whose minds are open to such immoral influences.47 It is necessary to see
whether a class which comes into contact with such knowledge suffer in their moral outlook
or might have impure or lecherous thoughts aroused in their minds. 48 The Supreme Court has
further widened the scope of public decency and morality by saying that it is not confined to
sexual morality alone and the ordinary dictionary meaning indicates that an action must be in
conformity with the current standards of behaviour or propriety.49

In its 42nd Report, the Law Commission had recommended the retention of Section 377
because the societal disapproval thereof is strong. Indian society considers homosexuality to
be repugnant, immoral and contrary to the cultural norms of the country.50

‘Order of nature’ has been defined as something pure, as distinguished from artificial and
contrived.51 Every organ of the human body has a particular function assigned by nature. If
the organs are abused by virtue of usage for any reasons other than these functions assigned,
it goes against nature. Decriminalisation of Section 377 would result in detrimental effects on
India’s social structure and the institution of marriage. The legislature has treated carnal
46
Constitution of Lexton is para materia to Constitution of India.
47
R v. Hicklin, L.R. 3 Q.B. 360; Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881.
48
Chandrakant Kalyandas Kakodkar v. State of Maharashtra, AIR 1970 SC 1390.
49
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113.
50
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
51
De Armond v. State, Okl. Cr., 285 P.2d 236; Black’s Law dictionary (6th Ed., 1990).

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intercourse against the order of nature as an offence and thus the presumption of
constitutionality is strong.

Further, it is imperative at this juncture to emphasise on the fact that social conditions as well
as general intellectual levels are different in our nation and other Western nations and thus
arguments which would be valid in respect of one area of the world may not hold good in
another area.52 The Supreme Court observed in Jagmohan Singh v. State of U.P.53, that there
remain grave doubts about the expediency of transplanting Western experience in our country
and mere acceptance of a way of life in another nation cannot be the basis for change in our
perceptions. Thus, in the context of Lexton, Section 377 is crucial to maintain public decency
and morality. It is contended that Section 377 is a justified interference by “public authorities
in the interest of public safety and protection of health and morals”. The promotion of
majoritarian sexual morality was a legitimate sexual interest54 and the retention thereof is
crucial to the interest of our nation.

D. SECTION 377 DOES NOT VIOLATE ARTICLE 21.

It is contended that Section 377 does not violate Article 21 of the Constitution of Kindia as
[D.1]it qualifies the test of substantive due process, [D.2]it does not violate one’s Right to
Privacy, and [D.3]it is in the interest of public health.

D.1. Section 377 qualifies the Test of Substantive Due Process.

Article 21 provides that the right to life and liberty is subject to procedure prescribed by
law.55 The requirement of substantive due process has been read into the Constitution of
Kindia through a combined reading of Articles 14, 21 and 19 and it has been held as a test
required to be satisfied while judging the constitutionality of a statute.56 The due process
requirement was laid down by the Supreme Court in the celebrated case of Maneka Gandhi
v. Union of India57 which states that apart from the prescription of some kind of procedure
for curtailment of one’s right , the procedure must be just and reasonable. Further, it must
satisfy the requirements of other provisions of the Constitution, like Articles 14 and 19.

52
Law Commission of India, 35th Report 1967, p. 354.
53
(1973) 1 SCC 20.
54
Lawrence v. Texas, 539 U.S. 558 (2003).
55
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
56
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
57
AIR 1978 SC 597.

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Section 4 of the Code of Criminal Procedure Act, 1973 provides “All offences under the
Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.” Thus, the CrPC prescribes a fair
procedure before any person committing an offence u/s 377 Kindian Penal Code 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.”58

No uniform test can be culled out to classify acts as “carnal intercourse against the order of
nature”59 and yet a reasonable, just and fair procedure has been established for the
implementation of Section 377. Further, as has already been discussed, Section 377 does not
violate Article 14 or 19 which is a requirement under the test laid out in Maneka Gandhi v.
Union of India.60 Thus, it is contended that Section 377 follows a substantive due process
that is reasonable and non-arbitrary and is thus not violative of one’s Right to life and liberty.

D.2. Section 377 does not violate one’s Right to Privacy.

It is contended that Right to Privacy is not violated in the case of Section 377 as the
[D.2.a.]Right to Privacy is not absolute, and [D.2.b]it can be curtailed by following due
process of law.

D.2.a. Right To Privacy Is Not Absolute.

The Constitution does not grant in specific and express terms any right to privacy as such.61 It
has merely been culled by the Supreme Court from Art. 21 and several other provisions of the
Constitution read with the Directive Principles of State Policy. 62 The scope of the Right of
Privacy, as also the permissible limits upon its exercise, have been laid down in the case of
Kharak Singh v. State of UP and others63, which held “Our Constitution does not in terms
confer any like constitutional guarantee.”

58
Calvin Francis v. Orissa 1992 (2) Crimes 455.
59
Mihir alias Bhikari Charan Sahu v. State, Cri LJ 488.
60
AIR 1978 SC 597.
61
MP JAIN, INDIAN CONSTITUTIONAL LAW, 1168 (7th ed. 2015).
62
Ibid 60.
63
(1964) 1 SCR 332.

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In Mr. X v. Hospital Z,64 it was held that Right to Privacy is not absolute and is subject to
such action as may be lawfully taken for the prevention of crime or disorder or protection of
health or morals or protection of rights and freedoms of others. Nor does it include the right
to commit any offence as defined u/s 377 or any other section. Thus, Right to Privacy is not
absolute.

D.2.b. It can be curtailed by following Due Process of Law.

In Govind v. State of Madhya Pradesh65, the Supreme Court considered the constitutional
validity of a regulation which provided for surveillance by way of several measures indicated
in the said regulation. Further, it was held, “right of privacy must be subject to restriction on
the basis of compelling state interest.”

As has already been contended in the previous sub-issue, the state in this case has compelling
interest in the form of ‘public morality and decency’. Further, Section 377 is in the interest of
maintaining public health and preventing a widespread problem of HIV/AIDS. In light of
this, it is contended that Section 377 does not violate one’s Right to Privacy since there is due
process of law involved.

D.3. Section 377 is in the Interest of Public Health.

National Aids Control Organisation (NACO) states that the groups identified to be at greater
risk of acquiring and transmitting HIV infections due to a high level of risky behaviour and
insufficient capacity of power for decision making to protect themselves from infection,
generally described as ‘High Risk Groups’ (HRG), broadly include men who have sex with
men (MSM)66, among others. HIV/AIDS is transmitted through the route of sex and
specifically that of sex by men-with-men. Out of the estimated 5 million people living with
HIV in Asia in 2007, 3,80,000 were those who had been newly affected. This significant
increase was attributed, amongst others, to “unprotected sex” in which unprotected anal sex
between men in stated to be a potential significant factor.67

Anal intercourse between two homosexuals is a high risk activity, which exposes both the
participating individuals to the risk of HIV/AIDS, and this becomes even grave in case of a

64
(1998) 8 SCC 296.
65
AIR 1975 SC 1378.
66
National AIDS Control Organisation, Annual Report 2011-12, page 9.
67
UN Report on Global AIDS Epidemic, 2008, pp 47-50.

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male bisexual having intercourse with a female partner who may not even be aware of the
activity of her partner and is yet exposes to high risk of HIV/AIDS.68

The strategy for preventing further transmission of infection includes reinforcing the
traditional Indian moral values of abstinence, delayed sexual debut till marriage and fidelity
among youth and other impressionable groups of population.69

Section 377 helps in putting a brake in the spread of AIDS and if consensual same-sex acts
between adults were to be decriminalised, it would erode the effect of public health services
by fostering the spread of AIDS. Further, it is contended that Section 377 does not obstruct
personality development of homosexuals or affects their self-esteem in any way because the
observation is such a case is solely based on reports prepared by academicians and such
reports cannot be relied upon to declare any legislation violative of one’s fundamental
rights.70 Thus, Section 377 is crucial for maintenance of decent public health standards in our
nation.

Based on the above contentions, it is hence humbly submitted that Section 377 is not
violative of any fundamental rights conferred upon the citizens of Kindia and its
constitutionality must be upheld.

68
National AIDS Control Organisation, Annual Report 2014-15.
69
WRIT PETITION (CIVIL) NO.7455 OF 2001, Reply Affidavit on Behalf of Respondents 4 and 5.
70
Southern Petrochemical Industries v. Electricity Inspector, (2007) 5 SCC 447; Tamil Nadu Electricity Board
v. Status Spinning Mills, (2008) 7 SCC 353; Seema Silk and Sarees v. Directorate of Enforcement, (2008) 5
SCC 580.

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 PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYS THAT
THE HON’BLE SUPREME COURT BE PLEASED:

A. TO UPHOLD THE PUNISHMENT AWARDED TO JOSEPH BY THE TRIAL

COURT.

B. TO UPHOLD THE CONSTITUTIONAL VALIDITY OF SECTION 377 OF

THE KINDIAN PENAL CODE, 1860.

AND/OR

PASS ANY ORDER THAT THIS HON’BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE RESPONDENT AS IN DUTY BOUND

SHALL EVER PRAY.

COUNSEL FOR THE RESPONDENT

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