19 – R

UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES

GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY

GRAND INTRA MOOT COURT COMPETITION, 2018

MOST RESPECTFULLY SUBMITTED BEFORE

THE HONOURABLE SUPREME COURT OF INDIA

MEMORIAL FOR THE RESPONDENT

IN THE PROCEEDINGS BETWEEN

W.P. NO. ___ /2018

RUX PETITIONER

VERSUS
UNION OF INDIA RESPONDENT

W.P. NO. ___ /2018

RUPALI PETITIONER

VERSUS
UNION OF INDIA RESPONDENT

DRAWN AND FILED BY

COUNSELS APPEARING ON BEHALF OF THE

RESPONDENTS
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 4

STATEMENT OF JURISDICTION 8

STATEMENT OF FACTS 9

ISSUES RAISED 10

SUMMARY OF ARGUMENTS 11

ARGUMENTS ADVANCED 12

1. THAT THE PRESENT WRIT PETITIONS ARE NOT MAINTAINABLE

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA. 12

2. THAT SECTION 377 OF THE INDIAN PENAL CODE, 1860 IS

CONSTITUTIONAL, FOR IT DOES NOT VIOLATE ARTICLES 14, 19,
AND 21 OF THE CONSTITUTION OF INDIA. 15

(i) SECTION 377 IS NOT VIOLATIVE OF ARTICLE 14.

(ii) SECTION 377 IS NOT VIOLATIVE OF ARTICLE 19.

(iii) SECTION 377 IS NOT VIOLATIVE OF ARTICLE 21.

3. THAT SECTION 497 OF THE INDIAN PENAL CODE, 1860 IS

CONSTITUTIONAL, FOR IT DOES NOT VIOLATE ARTICLE 14 OF
THE CONSTITUTION OF INDIA. 35

(i) THE LEGISLATIVE HISTORY IS ESSENTIAL FOR UNDERSTANDING THE

CONSTITUTIONALITY OF THE ACT.
(ii) APPLICATION OF SECTION 497 DOES NOT EXTEND TO SAME SEX
CONDUCT
(iii) SECTION 497 IS NOT VIOLATIVE OF ARTICLE 14.

`MEMORIAL FOR THE RESPONDENT Page 1

 (iv) THE PETITIONER’S ARGUMENT GOES TO THE POLICY OF THE LAW
RATHER THAN IMPLEMENTATION OF LAW

PRAYER 42

`MEMORIAL FOR THE RESPONDENT Page 2

 LIST OF ABBREVIATIONS

& And
AA Adjudicating Authority
AIHC All Indian High Court Cases
AIR All India Reporter
All Allahabad High Court
Anr. Another
Bom Bombay High Court
Cal Calcutta High Court
CBI Central Bureau of Investigation
Crl. App. Criminal Application
CrLJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
DB Division Bench
Del Delhi High Court
Ed. Editiors
Edn. Edition
H.C. High Court
Hon’ble Honorable
i.e. that is
Ib. Ibid
IPC Indian Penal Code
Ltd Limited
Mad Madaras High Court
No. Number
Ors. Others
P&H Punjab and Haryana
SC Supreme Court of India
SCC Supreme Court Cases

`MEMORIAL FOR THE RESPONDENT Page 3

Sec. Section
u/s Under Section
v. Versus
Viz. As follows
W.P. Writ Petition

`MEMORIAL FOR THE RESPONDENT Page 4

 INDEX OF AUTHORITIES

A. PRIMARY SOURCES

Constitution of India, 1950

STATUTES REFERRED
Code of Criminal Procedure, 1973
Indian Penal Code, 1860

SUPREME COURT JUDGEMENTS

1. D.K. Trivedi and Sons v. State of Gujarat, AIR 1986 SC 1323.
2. M. Nagaraj v. Union of India, AIR 2007 SC 1.
3. Madan Gopal Kakkad v. Naval Dubey and Ors, 1992 SCC (3) 204.
4. General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205.
5. Romesh Thapar v. State of Madras, AIR 1950 SC 124
6. A.K. Roy v. Union of India, AIR 1982 SC 710
7. Kartar Singh v. State of Punjab, (1994) 3 SCC 569
8. Banari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625.
9. Yusuf Abdul Aziz v. State of Bomabay, AIR 1954 SC 321.
10. Smt. Sowmithri Vishnu v. Union of India & Ors., 1985 AIR 1618.
11. Navtej Singh Johar and Ors. v. Union of India &Ors., W.P. (Crl.) No. 76/ 2016.
12. Joseph Shine v. Union of India, W.P.(Crl) No. 194/ 2018.
13. Justice K.S. Puttuswamy v. Union of India, (2015) 8 SCC 735.
14. Hindi Hitrakshak Samiti and Ors. v. Union of India and Ors., 1990 AIR 851.
Divisional Manager, Arvali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3
15.
JT 221.
16. Government of Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi 2008 (2) 8 JT 639.
17. State (Govt of NCT of Delhi) v. Prem Raj (2003) 7 SCC 121.
18. J.P. Bansal v. State of Rajasthan, 2003 (3) SCALE 154.
19. P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578.
20. Union of India and Another v. Deoki Nanadan Aggarwal, 1992 Supp. (1) SCC 323.
Director of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, AIR 2007 SC
21.
1640.
22. Parent of a student of Medical College, Shimla v. State of Himachal Pradesh 1985
SC 910.
23. Hindi Hitrakshak Samiti and Ors. v. Union of India and ors., 1990 AIR 851.
24. Rishi Malhotra v. Union of India, W.P. (Cri) No. 7/2018.
25. Mylapore Club v. State of Tamil Nadu, (2005) 12 SCC 752, AIR 2007 SC 1077.

BOMBAY HIGH COURT

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

`MEMORIAL FOR THE RESPONDENT Page 5

 2. Yusuf Abdul Aziz v. State AIR 1951 Bom. 470, 1952 Cri LJ 23.

KERELA HIGH COURT

1. State of Kerala v. Kundumkara Govindam 1969 Cri LJ 818.

COMMISSION AND COMMITTEE REPORTS

1. Law Commission of India, 42nd Report on Indian Penal Code,1860 (1971)
Government of India, Report: Committee on Reforms of Criminal Justice System
2.
(Ministry of Home Affairs, 2013)

B. SECONDARY SOURCES
BOOKS REFERRED
1. H.M. Seervai, Constitutional Law of India (Universal Law Publishing Co., 4th edn.)
2. M.P. Jain, Indian Constituional Law, (LexisNexis, 7th Edition, 2016)
3. Durga Das Basu, Shorter Constituion of India (LexisNexis, 14th edn.)
4. Justice G.P. Singh, Principles of Statutory Interpretation (LexisNexis Butterworths
Wadhwa, 13th edn.)
5. Surendra Malik &Sumeer Malik, Supreme Court Words and Phrases (Eastern Book
Company, 3rd edn. 2013)
6. Satyajeet A Desai (ed.), Mulla Hindu Law by Sir Dinshav Fardunji Mulla (Lexis
Nexis, 22nd edn.)
7. Justice Chandramauli Kr. Prasad and Namit Saxena (eds.), Ratanlal &Dhirajlal: The
Code on Criminal Procedure (Lexis Nexis, 22nd edn.)
8. Prof. Kusum, Family Law Lectures: Family Law (Lexis Nexis, 4th edn.)
9. Justice KT Thomas and MA Rashid (eds.), Ratanlal & Dhirajlal: The Indian Penal
Code (Lexis Nexis, 33rd edn.)
10. Justice ML Singhal (ed.), RP Kathuria: Supreme Court on Criminal Law (1950-2013)
(Lexis Nexis, 8th edn.)
11. Justice CK Thakker (ed.), Ratanlal & Dhirajlal: Law of Crimes- A commentary on the
Indian Penal Code, 1860 (Bharat Law House, New Delhi, 26th edn.)
12. Dr. Hari Singh Gour, Gour’s Penal Law of India (Law Publishers Pvt. Ltd., 11th edn.)
13. SP Sen Gupta, Sarkar & Justice Khastgir: Indian Penal Code, 1860 (Kamal Law
House, Kolkata, 3rd edn.)
14. SK Sarvaria, RA Nelson’s Indian Penal Code (Lexis Nexis Butterworths, 9th edn.)
15. Ram Jethmalani and DS Chopra, The Indian Penal Code (Thomson Reuters, 1st edn.,
2014)
16. Batuk Lal, Batuk Lal’s Commentary on the Indian Penal Code, 1860 (Orient
Publishing Company, New Delhi, 2nd edn.)
17. Surendra Malik and Sudeep Malik, Supreme Court on Penal Code ( Eastern Book
Company, 1st edn.)

`MEMORIAL FOR THE RESPONDENT Page 6

 18. SC Sarkar, Sarakar on the Indian Penal Code, 1860 (Dwivedi Law Agency, 2007)
19. KD Gaur, Commentary on Indian Penal Code (Universal Law Publishing Co., 2006
edn.)
20. Philip Babcock Gove (ed.), Webster’s Third New International Dictionary (Merriam-
Webster, 1993)

SCHOLARLY ARTICLES & JOURNALS

1. Dr. R Prakasha, Competence of Two-Judge Benches of the Supreme Court to Refer
Cases to Larger Benches, (2004) 6 SCC (Jour) 75 .

`MEMORIAL FOR THE RESPONDENT Page 7

 STATEMENT OF JURISDICTION

The Honourable Supreme Court is vested with jurisdiction to hear the present matter under
Article 32 of the Constitution of India.

The provision under which the petitioner has approached the Hon’ble Court and to which the
respondent humbly submits, is read herein under as:

32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move to the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have the power to issue directions or orders or writs, including
writs in the nature of habeus corpus, mandamus, prohibition, quo- warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.

Under this aforementioned jurisdiction, the counsel for the Respondent humbly approaches
the Hon’ble Supreme Court of India to respond to the Petition above named.

`MEMORIAL FOR THE RESPONDENT Page 8

 STATEMENT OF FACTS

1. Mr Rux, a 38-year-old struggling theatre artist married Ms Rupali, a 23-year-old

world renowned actress on 12 January 2015.
2. On 21 October 2016, Ms Rupali posted on Twitter at an interval of fifteen minutes
“Rupali needs a real man”, “Divorcing my GAY husband and “Disgusted to catch my
husband with another man in my marital bed.”
3. Mr Rux also took on the social media and posted “Divorcing Ms Rupali. Request Ms
Rupali to remain dignified. Request the media to respect my privacy.”
4. On 24 October 2017, an electronic media house MMR Publications, published an
article titled ‘The Disgusting Secret Life of Rux’. The article condemned
homosexuality as both a sin against God as well as a crime against State.
5. On 25 October 2017, Mr Rux was attacked by a group of unknown men and suffered
various minor injurie. Mr Rux filed an FIR against these unknown persons.
6. Mr Rux was also fired from his theatre group.
7. On 25 October 2017, one Mr Rancho filed an FIR under section 377 of IPC against
Mr Rux.
8. On 26 October 2017, Mr Rux filed a defamation suit for Rs. 1 crore against Ms Rupali
and MMR Publications.
9. Mr Rux approached the Supreme Court for an anticipatory bail and also filed a writ
petition challenging the constitutional validity of Section 377 as being in violation of
Articles 14, 19 and 21 of the Constitution of India.
10. Ms Rupali filed a petition challenging Section 497 of the IPC and states that it is
violative of Article 14 as it doesn’t prosecute homosexual adultery.
11. The Hon’ble Supreme Court has decided to hear both the petitions together as they
pertain to homosexuality.

`MEMORIAL FOR THE RESPONDENT Page 9

 ISSUES RAISED

WHETHER THE PRESENT WRIT PETITIONS ARE MAINTAINABLE UNDER

ARTICLE 32 OF THE CONSTITUTION OF INDIA

II

WHETHER SECTION 377 OF THE INDIAN PENAL CODE, 1860 IS

UCONSTITUTIONAL, BEING VIOLATIVE OF ARTICLES 14, 19 AND 21 OF THE
CONSTITUTION OF INDIA

III

WHETHER SECTION 497 OF THE INDIAN PENAL CODE, 1860 IS

UNCONSTITUTIONAL, BEING VIOLATIVE OF ARTICLE 14 OF THE
CONSTITUTION OF INDIA

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 SUMMARY OF ARGUMENTS

WHETHER THE PRESENT WRIT PETITIONS ARE MAINTAINABLE UNDER

ARTICLE 32 OF THE CONSTITUTION OF INDIA

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

II

WHETHER SECTION 377 OF THE INDIAN PENAL CODE, 1860 IS

UCONSTITUTIONAL, BEING VIOLATIVE OF ARTICLES 14, 19 AND 21 OF THE
CONSTITUTION OF INDIA

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

III

WHETHER SECTION 497 OF THE INDIAN PENAL CODE, 1860 IS

UNCONSTITUTIONAL, BEING VIOLATIVE OF ARTICLE 14 OF THE
CONSTITUTION OF INDIA

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

`MEMORIAL FOR THE RESPONDENT Page 11

 ARGUMENTS ADVANCED

I. THAT THE PRESENT WRIT PETITIONS ARE NOT MAINTAINABLE

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

It is submitted that the present writ petitions filed by Mr. Rux 1 and Ms. Rupali2 under Article
32 of the Constitution of India are liable to be dismissed at the very outset.

(i) THE MATTER ON THESE ISSUES ARE PENDING IN THIS

HON’BLE COURT AWAITING FINAL ADJUDICATION.

It is most humbly submitted that the issues being raised here are pending final adjudication in
the matters already pending for adjudication before the constitutional bench comprising of
five judges of this Hon’ble Court in the matter of Navtej Singh Johar and Ors. v. Union of
India & Ors.3 and Joseph Shine v. Union of India4 .

A smaller bench will be required to follow a larger Bench decision. This is not
because it is bound by it, but because judicial propriety and certainty in law requires it.5

This judicial discipline can also be seen in the judgement of Justice K.S. Puttaswamy
and Ors. v Union of India & Ors.6, where this Hon’ble Court observed that “since the
challenge to Section 377 is pending consideration before a larger bench of this Court, we
would leave the constitutional validity to be decided in an appropriate proceeding.”7 The
judicial discipline plays a very important role in the adjudication process in various courts of
this country. Therefore, it is requested before this Hon’ble Court to dismiss the said petition.

(ii) JUDICIARY HAS NO SAY IN POLICY DECISIONS OF THE

LEGISLATIVE AUTHORITY.

1
As per the fact sheet challenged the constitutional validity of Section 377 of the India Penal Code as violative
of Article 14, 19 and 21.
2
As per the fact sheet, she challenged Section 497 of the IPC as it is violative of Article 14 since it does not
prosecute Homosexual Adultery.
3
W.P. (Crl.) No. 76/ 2016.
4
W.P.(Crl) No. 194/ 2018.
5
Dr. R Prakasha, Competence of Two-Judge Benches of the Supreme Court to Refer Cases to Larger Benches,
(2004) 6 SCC (Jour) 75.
6
AIR 2017 SC 416.
7
Justice K.S. Puttuswamy v. Union of India, (2015) 8 SCC 735, at ¶128.

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It is submitted that the Court cannot interfere in matters of Legislative policy. 8 The Court
must maintain judicial restraint in matters relating to the legislative or executive domain.9

In the case of State (Govt of NCT of Delhi) v. Prem Raj10, the Court held that:

“Where the words are clear, there is no obscurity, there is no ambiguity and the intention of
the legislature is clearly conveyed, there is no scope for the court to innovate or to take upon
itself the task of amending or altering the statutory provisions. In that situation the judge
should proclaim that they are playing the role of lawmaker merely for an exhibition of
judicial valour. They have to remember that there is a line, though thin, which separates
adjudication from legislation. That line should not be crossed or erased.”11

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

Karnataka12 has recognized the limits of judicial power in a constitutional democracy, and in
Union of India and Another v. Deoki Nanadan Aggarwal13 it was held that courts cannot
rewrite, recast or reframe the legislation for the very good reason that it has no power to
legislate.

The Supreme Court has reiterated in multiple judgements that the Courts cannot act as
an Appellate Authority and examine the correctness, suitability and the appropriateness of a
policy or are courts advisors to the executive on matters of policy which the executive is
entitled to formulate. The judicial review in this area is only limited to the examination as to
whether any Fundamental Rights have been violated or its opposed to the provisions of the
Constitution or any statutory provision or is manifestly arbitrary. 14 The Court cannot simply
usurp the Constitution and it cannot even indirectly require the executive to introduce a
particular legislation or the legislature to pass it or assume to itself a supervisory role over the
law making activities of the executive and the legislature.15

Therefore, it is submitted that if the governance is illegal or violative of rights and

obligations, other questions may arise out whether, as mentioned hereinbefore, it has to be a

8
Hindi Hitrakshak Samiti and Ors. v. Union of India and Ors., 1990 AIR 851.
9
Divisional Manager, Arvali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3 JT 221; Government of
Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi 2008 (2) 8 JT 639.
10
(2003) 7 SCC 121.
11
J.P. Bansal v. State of Rajasthan, 2003 (3) SCALE 154.
12
(2002) 4 SCC 578.
13
(1992 Supp. (1) SCC 323.
14
Director of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737: AIR 2007 SC 1640.
15
Parent of a student of Medical College, Shimla v. State of Himachal Pradesh 1985 SC 910.

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policy decision by the Government or the authority and thereafter enforcement of that policy,
the Court should not be, and we hope would not be an appropriate forum for the decision.16

The same has been held by the seven-Judge Bench in P. Ramachandra Rao v. State of
Karnataka17:

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

It is further submitted that in a similar petition filed by Adv. Rishi Malhotra for
making laws pertaining to rape, sexual harassment, stalking, voyeurism, outraging the
modesty, etc. gender neutral, this Hon’ble Court while disposing of the PIL observed that it is
the duty of the Parliament to amend the policy and the Court cannot even direct the collection
of data.18

Challenge on the ground of wisdom of legislation is not permissible as it is for the

legislature to consider.19 Since in the present case there is absolutely no legal wrong, thus
there can be no question of any remedy following the Latin maxim ubi jus ibi remedium.

Thus, it is submitted that the writ petitions are not maintainable and should be dismissed.

16
Hindi Hitrakshak Samiti and Ors. v. Union of India and Ors., 1990 AIR 851.
17
(2002) 4 SCC 578.
18
Rishi Malhotra v. Union of India, W.P. (Cri) No. 7/2018, disposed of vide Order dated 02.02.2018.
19
Mylapore Club v. State of Tamil Nadu, (2005) 12 SCC 752, AIR 2007 SC 1077.

`MEMORIAL FOR THE RESPONDENT Page 14

 II. THAT SECTION 377 OF THE INDIAN PENAL CODE, 1860 IS
CONSTITUTIONAL, FOR IT DOES NOT VIOLATE ARTICLES 14, 19
AND 21 OF THE CONSTITUTION OF INDIA

It is submitted that Section 377 which reads as follows:

“Sec 377. Unnatural offences — Whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal, shall be punished with 1[imprisonment for
life], or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.

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

offence described in this section.”

and is not violative of Articles 14, 19 and 21 of the Constitution.

(i) SECTION 377 IS NOT VIOLATIVE OF ARTICLE 14 OF THE

CONSTITUTION.

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

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

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

(2) The differentia adopted as the basis of classification must have a rational or reasonable
nexus with the objects sought to be achieved by the statute in question.20

Section 377 merely defines a particular offence and its punishment. The State has
the power of determining who should be regarded as a class for the purpose of legislation and
in relation to a law enacted on a particular subject.

Supreme Court has observed in K. Thimmappa v. Chairman, Central Board of Directors:21

20
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873, 891; State of Haryana v. Jai Singh, AIR 2003
SC 1696; Welfare Asson. ARP v. Ranjit P. Gohil, (2003) 9 SCC 358; Javed v. State of Haryana, (2003) 8 SCC
369; Budhan Choudhary & Others v. State of Bihar, AIR 1955 SC 191.
21
K. Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467.

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

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

A. Carnal Intercourse within the order of nature

B. Carnal Intercourse against the order of nature.

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

distinguishes persons that are grouped together. This differentia has a rational basis to the
object of prosecuting offenders under the Penal Code who commit an offence by going
against the nature and affecting the human body. Additionally, Marginal over inclusiveness or
under inclusiveness, will not vitiate the classification22. Hence, such differentiation is not
discriminatory and does not violate the principle of Article 14 of the Constitution since there
is rational nexus on the basis of which the differentiation has been made with the object
sought to be achieved by this particular provision.23

Furthermore, it is submitted that the Courts should not insist on delusive exactness
or apply doctrinaire tests for determining the validity of classification in any given case.
Classification is justified if it is not palpably arbitrary and the law can make and set apart the
classes according to the needs and exigencies of the society and as suggested by experience. It
can recognise even degree of evil, but the classification should never be arbitrary, artificial or
evasive.24

It is submitted that the above-mentioned classification is required, to prosecute in

situations where carnal intercourse against the order of nature is committed against man,
woman or animal. The State has an imminent interest in prosecuting all the offenders who
have committed carnal intercourse against the order of nature. The Court should not venture
to interpret what is the ‘order of nature’ or ‘an unnatural offence’ because this would lead to
the watering down of the Sec. 377 and prosecutions related to acts which fall under Sec. 377
IPC.

22
Basheer alias N.P. Basheer v. State of Kerala, AIR 2004 SC 2757.
23
Union of India v. M.V. Valliappan, AIR 1999 SC 2526.
24
Re: The Special Courts Bill v. Unknown, AIR 1979 SC 478.

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 Secondly, it is submitted that there is no classification on the basis of consent that is
consensual carnal intercourse against the order of nature and non-consensual carnal
intercourse against the order of nature, since defence of consent is not available to Section
377 by virtue of Section 91 of Indian Penal Code, 1860.

Section 91 reads as:

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

Illustration- Causing miscarriage (unless caused in good faith for the purpose of
saving the life of the woman) is an offence independently of any harm which it
may cause or be intended to cause to the woman. Therefore, it is not an offence
“by reason of such harm”; and the consent of the woman or of her guardian to
the causing of such miscarriage does not justify the act.”

It says in explicit terms that consent will only condone the act causing harm to the
person giving the consent which will otherwise be an offence. Acts which are offences
independently of any harm which they may cause will not be covered by consent given under
Sections 87, 88 and 89 of the IPC.25

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

Additionally, it submitted that the word ‘voluntarily’ does not mean consent.
Voluntarily has been defined in Section 39 of India Penal Code, 1860 as:

“A person is said to cause an effect "voluntarily" when he causes it by means

whereby he intended to cause it, or by means which, at the time of employing
those means, he knew or had reason to believe to be likely to cause it.”

25
Justice KT Thomas and MA Rashid (eds.), Ratanlal & Dhirajlal: The Indian Penal Code 1011 (Lexis Nexis,
33rd edn).

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 The act voluntarily done in effect and substance means (a) act done intentionally
(b) act done with the knowledge of end result being a crime; (c) act done when the doer had
reason to believe that the actus reus would be an offence.26 The fundamental principle of
criminal liability is that there must be a wrongful act – actus reus, combined with a wrongful
intention – mens rea. Voluntary is a word by which the doctrine of mens rea is incorporated27
into section 377 just like other words such as ‘intentionally’, ‘knowingly’, ‘voluntarily’,
‘fraudulently’, ‘dishonestly’ etc. which are used to signify the state of mind required for
commission of particular offences and thus, incorporate the doctrine of mens rea.

Therefore, it is submitted that a blanket declaration that carnal intercourse against

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

In P. Ramachandra Rao v. State of Karnataka28, it was held:

“28. The primary function of judiciary is to interpret the law. It may lay down
principles, guidelines and exhibit creativity in the field left open and unoccupied
by Legislation …

29. Professor S.P. Sathe, in his recent work (Year 2002) "Judicial Activism in
India Transgressing Borders and Enforcing Limits", touches the topic
"Directions: A New Form of Judicial Legislation". Evaluating legitimacy of
judicial activism, the learned author has cautioned against Court "legislating"
exactly in the way in which a Legislature legislates and he observes by reference
to a few case that the guidelines laid down by court, at times, cross the border of
judicial law making in the realist sense and trench upon legislating like a
Legislature. "Directions are either issued to fill in the gaps in the legislation or to
provide for matters that have not been provided by any legislation. The Court has
taken over the legislative function not in the traditional interstitial sense but in an
overt manner and has justified it as being an essential component of its role as a
constitutional court." (p.242). " In a strict sense these are instances of judicial

26
Ibid
27
KD Gaur, Commentary on Indian Penal Code (Universal Law Publishing Co., 2006 edn.).
28
AIR 2002 SC 1856.

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 excessive that fly in the face of the doctrine of separation of powers. The doctrine
of separation of powers envisages that the legislature should make law, the
executive should execute it, and the judiciary should settle disputes in accordance
with the existing law. In reality such watertight separation exists nowhere and is
impracticable. Broadly, it means that one organ of the State should not perform a
function that essentially belongs to another organ. While law-making through
interpretation and expansion of the meanings of open textured expressions such
as 'due process of law', 'equal protection of law,' of 'freedom of speech and
expression' is a legitimate judicial function, the making of an entirely new law..
thought directions.... is not legitimate judicial function." (p.220).

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

Moreover, in the case of Supreme Court Women Lawyers Assn. (SCWLA) v. Union
of India29, the Supreme Court held:

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

29
AIR 2016 SC 358.

`MEMORIAL FOR THE RESPONDENT Page 19

 Constitution.
The following passage from the said authority makes the position clear:

...The international conventions and norms are to be read into them in

the absence of enacted domestic law occupying the field when there is
no inconsistency between them. It is now an accepted rule of judicial
construction that regard must be had to international conventions and
norms for construing domestic law when there….

7. In the case at hand, the Legislature has enacted the law and provided the
punishment and, therefore, we cannot take recourse to the Vishaka principle.
There is no constitutional silence or abeyance.

15. This Court cannot provide a higher punishment. It can only suggest to the
Legislature. We are absolutely conscious that Indian Penal Code provides
punishment for the offence of rape. There can be no doubt that a girl child is a
minor but may be a time has come where a distinction can be drawn between the
girl children and the minor, may be by fixing the upper limit at 10 for the girl
children. We are disposed to think so as by that age, a child, a glorious gift to
mankind, cannot conceive of any kind of carnal desire in man. Once she becomes
a victim of such a crime, there is disastrous effect on her mind. The mental agony
lasts long. Sorrow and fear haunt forever. There is need to take steps for stopping
this kind of child abuse and hence, possibly there is a need for defining the term
"child" in the context of rape and thereafter provide for more severe punishment
in respect of the culprits who are involved in this type of crime. In the light of the
said decision, we part with the suggestion with the fond hope that Parliament
would respond to the agony of the collective, for it really deserves consideration.
We say no more on this score.”

Furthermore, in Sakshi vs. Union of India30, the Hon’ble Apex Court held:

“19. It is well-settled principle that the intention of the legislature is primarily to

be gathered from the language used, which means that attention should be paid
to what has been said as also to what has not been said. As a consequence a

30
AIR 2004 SC 3566.

`MEMORIAL FOR THE RESPONDENT Page 20

 construction which requires for its support addition or substitution of words or
which results in rejection of words as meaningless has to be avoided. It is
contrary to all rules of construction to read words into an Act unless it is
absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by
substituting some other words for words of the statute. It is equally well settled
that a statute enacting an offence or imposing a penalty is strictly construed.
The fact that an enactment is a penal provision is in itself a reason for
hesitating before ascribing to phrases used in it a meaning broader than that
they would ordinarily bear. (Justice G.P. Singh: Principles of Statutory
Interpretation, pp. 58 and 751, 9th Edn.)

35. The suggestions made by the petitioners will advance the cause of justice and
are in the larger interest of society. The cases of child abuse and rape are
increasing at alarming speed and appropriate legislation in this regard is,
therefore, urgently required. We hope and trust that the Parliament will give
serious attention to the points highlighted by the petitioner and make
appropriate legislation with all the promptness which it deserves.”

In Union of India v. Deoki Nandan Aggarwal31

“It is not the duty of the Court either to enlarge the scope of the legislation or the
intention of the legislature when the language of the provision is plain and
unambiguous. The Court cannot rewrite, recast or reframe the legislation for the
very good reason that it has no power to legislate. The power to legislate has not
been conferred on the courts. The Court cannot add words to a statute or read
words into it which are not there. Assuming there is a defect or an omission in
the words used by the legislature the Court could not go to its aid to correct or
make up the deficiency. Courts shall decide what the law is and not what it
should be. The Court of course adopts a construction which will carry out the
obvious intention of the legislature but could not legislate itself. But to invoke
judicial activism to set at naught legislative judgment is subversive of the
constitutional harmony and comity of instrumentalities.”

31
AIR 1992 SC 96.

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 Lastly, it is submitted that “no enactment can be struck down by just saying that it is
arbitrary or unreasonable. Some or other constitutional infirmity has to be found before
invalidating an Act.” as laid down by the Hon’ble Supreme Court in case of State of A.P. v.
McDowell32. In Khoday Distilleries v. State of Karnataka33, it was again repeated that
arbitrariness is not a separate ground for separate ground for question a legislation under
Article 14. In Natural Resources Allocation, in re,34 quoting extensively from McDowell, it
was underlined that “A law may not be struck down for being arbitrary without the pointing
out of a constitutional infirmity.”

Additionally, in Rajbala v. State of Haryana35, divisional bench of the Hon’ble Supreme

Court held:

“[I]t is clear that courts in this country do not undertake the task of declaring
a piece of legislation unconstitutional on the ground that the legislation is
“arbitrary” since such an exercise implies a value judgment and courts do not
examine the wisdom of legislative choices unless the legislation is otherwise
violative of some specific provision of the Constitution. To undertake such an
examination would amount to virtually importing the doctrine of “substantive due
process” employed by the American Supreme Court at an earlier point of time
while examining the constitutionality of Indian legislation.”

(ii) SECTION 377 IS NOT VIOLATIVE OF ARTICLE 19 OF THE

CONSTITUTION.

Clauses (a) to (g) of Article 19 (1) of the Constitution guarantee to the citizens of India six
freedoms viz of ‘speech and expression, ‘peaceful assembly’, ‘association’, ‘free movement’,
‘residence’ and ‘practicing any profession and carrying on any business’.

However, the freedoms guaranteed under Article 19(1) are not absolute. Each of these
rights is liable to be controlled, curtailed and regulated to some extent by laws made by the
Parliament or the State Legislature.36 Accordingly, clauses (2) to (6) of Article 19 lay down

32
AIR 1996 SC 1627.
33
AIR 1996 SC 911.
34
Special Reference No. 1 of 2012, [2012] 9 SCR 311; (2012) 10 SCC 1.
35
AIR 2016 SC 33.
36
M.P. Jain, Indian Constitutional Law 901 (LexisNexis, Calcutta, 7th edn.,2016).

`MEMORIAL FOR THE RESPONDENT Page 22

the grounds and the purposes for which a Legislature can impose ‘reasonable restrictions’ on
the rights guaranteed by Article 19(1)(a) to (g).

The court is not concerned with the necessity of the impugned legislation or the
wisdom of the policy underlying it, but only whether the restriction is in excess of the
requirement and whether the law has overstepped the Constitutional limitations.37

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

Secondly, as per Article 19 (2):

“Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub
clause in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or morality or
in relation to contempt of court, defamation or incitement to an offence”

It is submitted that Section 377 even if presumed to infringe the freedom of speech and
expression, it is a reasonable restriction in the interests of decency and morality.

In Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte 38 the Supreme Court
has given somewhat wider meaning to the term ‘decency’ and ‘morality’. The Court has
maintained that ‘decency’ or ‘morality’ is not confined to sexual morality alone. The ordinary
dictionary meaning of ‘decency’ indicates that the action must be in conformity with the
current standards of behaviour or propriety. The Court has cited with approval the following
observation from an English case:39

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

37
Society for Un-aided Private Schools of Rajasthan v. Union of India, AIR 2012 SC 3445.
38
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113, (1996) 1 SCC 130.
39
Knuller (Publishing, Printing and Promotions) Ltd. v. Director of Public Prosecutions, [1972] 2 All ER 898.

`MEMORIAL FOR THE RESPONDENT Page 23

 In a recent judgment of this Court, Aveek Sarkar v. State of West Bengal40, this Court
referred to English, U.S. and Canadian judgments and moved away from the Hicklin test and
applied the contemporary community standards test.

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

This can be seen from the Objective Resolution moved by Pandit Jawahar Lal Nehru in
the meeting of the Constituent Assembly held on 13.12.1946 which outlined the basics of
Indian Republic. The relevant portions of the same are extracted below:

“(1) This Constituent Assembly declares its firm and solemn resolve to proclaim
India as an Independent Sovereign Republic and to draw up for her future
governance a Constitution;
(2) WHEREIN the territories that now comprise British India, the territories that
now form the Indian States, and such other parts of India as are outside British
India and the States as well as such other territories as are willing to be
constituted into the Independent Sovereign India, shall be a Union of them all;
and
(3) WHEREIN the said territories, whether with their present boundaries or with
such others as may be determined by the Constituent Assembly and thereafter
according to the Law of the Constitution, shall possess and retain the status of
autonomous Units, together with residuary powers, and exercise all powers and
functions of government and administration, save and except such powers and
functions as are vested in or assigned to the Union, or as are inherent or implied
in the Union or resulting therefrom; and (4) WHEREIN all power and authority of
the Sovereign Independent India, its constituent parts and organs of government,
are derived from the people; and
(5) WHEREIN shall be guaranteed and secured to all the people of India
justice, social, economic and political; equality of status, of opportunity, and
before the law; freedom of thought, expression, belief, faith worship, vocation,
association and action, subject to law and public morality; and

40
AIR 2014 SC 1495.

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 (6) WHEREIN adequate safeguards shall be provided for minorities, backward
and tribal areas, and depressed and other backward classes; and
(7) WHEREBY shall be maintained the integrity of the territory of the Republic
and its sovereign rights on land, sea, and air according to Justice and the law of
civilised nations, and
(8) this ancient land attains its rightful and honoured place in the world and make
its full and willing contribution to the promotion of world peace and the welfare
of mankind.

I hope, the House will notice that in this Resolution, although we have not used
the word 'democratic' because we thought it is obvious that the word 'republic'
contains that word and we did not want to use unnecessary words and redundant
words, but we have done something much more than using the word. We have
given the content of democracy in this Resolution and not only the content of
democracy but the content, if I may say so, of economic democracy in this
Resolution.

The Resolution placed before you to-day has equality as its underlying theme. The
different sections of the country have been given autonomy and India as a whole
remains one with full sovereignty. We shall stand united in affairs which demand
our unity. The one important thing in the Resolution is the recognition of India as
a free country. Our country is one and yet we shall give full freedom to its various
sections to have for themselves whatever administration they liked. The present
division of our country into provinces may change. We shall do justice to all
communities and give them full freedom in their social and religious affairs.

The word 'people' means all the people. I am myself a servant of the farmers. To
work with them is my highest glory. The term people' is comprehensive and
contains all the people, It is, therefore, my opinion that no adjective should be
attached to it.”

In Kesavananda Bharati Sripadagalvaru vs. State of Kerala41, the Hon’ble Supreme Court
also understood ‘morality’ as ‘public morality’. It observed:

41
AIR 1973 SC 1461.

`MEMORIAL FOR THE RESPONDENT Page 25

 “1287. The further argument that fundamental rights are inalienable natural
rights and, therefore, unamendable so as to abridge or take them away does not
stand close scrutiny. Articles 13 and 32 show that they are rights which the people
have "conferred" upon themselves. A good many of them are not natural rights at
all. Abolition of untouchability (Article 17), abolition of titles (Article 18);
protection against double jeopardy (Article 20(2)); protection of children against
employment in factories (Article 24); freedom as to attendance at religious
instruction or religious worship in certain educational institutions (Article 28) are
not natural rights. Nor are all the fundamental rights conceded to all as human
beings. The several freedoms in Article 19 are conferred only on citizens and
not non-citizens. Even the rights conferred are not in absolute terms. They are
hedged in and restricted in the interest of the general public, public order,
public morality, security of the State and the like which shows that social and
political considerations are more important in our organized society. Personal
liberty is cut down by provision for preventive detention which, having regard to
the conditions prevailing even in peace time, is permitted. Not a few members of
the constituent assembly resented the limitations on freedoms on the ground that
what was conferred was merely a husk. Prior to the Constitution no such inherent
inalienability was ascribed by law to these rights, because they could be taken
away by law.”

In Mazdoor Kisan Shakti Sangathan vs. The Union of India (UOI) and Ors.42, the
Hon’ble Supreme Court affirmed the observation in Asha Ranjan and Ors. vs. State of Bihar
and Ors.43. The observation was:

“48. In this context, it is also appropriate to refer to certain other decisions where
the Court has dealt with the concept of competing rights. We are disposed to think
that dictum laid therein has to be appositely appreciated. In Mr. 'X' v. Hospital 'Z'
MANU/SC/0733/1998 : (1998) 8 SCC 296, the issue arose with regard to right to
privacy as implicit in the right to life and liberty as guaranteed to the citizens
Under Article 21 of the Constitution and the right of another to lead a healthy life.
Dealing with the said controversy, the Court held as a human being, Ms 'Y' must

42
2018 (9) SCALE 134.
43
AIR 2017 SC 1079.

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 also enjoy, as she obviously is entitled to, all the human rights available to any
other human being. This is apart from, and in addition to, the fundamental right
available to her Under Article 21, which guarantees "right to life" to every citizen
of this country. The Court further held that where there is a clash of two
fundamental rights, namely, the Appellant's right to privacy as part of right to life
and Ms 'Y's right to lead a healthy life which is her fundamental right Under
Article 21, the right which would advance the public morality or public interest,
would alone be enforced through the process of court, for the reason that moral
considerations cannot be kept at bay and the Judges are not expected to sit as
mute structures of clay in the hall known as the courtroom, but have to be
sensitive.

49. The aforesaid decision is an authority for the proposition that there can be a
conflict between two individuals qua their right Under Article 21 of the
Constitution and in such a situation, to weigh the balance the test that is
required to be applied is the test of larger public interest and further that would,
in certain circumstances, advance public morality of the day. To put it
differently, the "greater community interest" or "interest of the collective or
social order" would be the principle to recognize and accept the right of one
which has to be protected.”

In K.A. Abbas v. Union of India44, where the Supreme Court decided on the
constitutionality of pre-censorship of films, etc. in the backdrop of Article 19(1)(a) and 19(2).
The Hon’ble Court held that:

“[C]ensorship of films, their classification according to age groups and their

suitability for unrestricted exhibition with or without excisions is regarded as a
valid exercise of power in the interests of public morality, decency etc. This is
not to be construed as necessarily offending the freedom of speech and
expression…This is because the social interest of the people overrides
individual freedom. Whether we regard the state as the parens patriae or as
guardian and promoter of general welfare, we have to concede, that these
restraints on liberty may be justified by their absolute necessity and clear

44
(1970) 2 SCC 780.

`MEMORIAL FOR THE RESPONDENT Page 27

 purpose. Social interests take in not only the interests of the community but also
individual interests which cannot be ignored. A balance has therefore to be
struck between the rival claims by reconciling them. The larger interests of the
community require the formulation of policies and regulations to combat
dishonesty, corruption, gambling, vice and other things of immoral tendency
and things which affect the security of the State and the preservation of public
order and tranquillity.'”

Additionally, the Hon’ble Supreme Court in State of Madras v. V.G. Row45, dealt with
test of reasonableness reads as follows:

“15. ...It is important in this context to bear in mind that the test of
reasonableness, wherever prescribed, should be applied to each individual statute
impugned, and no abstract standard, or general pattern of reasonableness can be
laid down as applicable to all cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the
judicial verdict. In evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances of a given case, it is
inevitable that the social philosophy and the scale of values of the Judges
participating in the decision should play an important part, and the limit to their
interference with legislative judgment in such cases can only be dictated by their
sense of responsibility and self- restraint and the sobering reflection that the
Constitution is meant not only for people of their way of thinking but for all,
and that the majority of the elected representatives of the people have, in
authorising the imposition of the restrictions, considered them to be
reasonable.”

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

45
1952 CriLJ 966.

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offence even where the adults indulge in it in private. It is submitted that law cannot run
separately from the society since it only reflects the perception of the society. It is submitted
that Section 377 IPC is only responding to the values and morals of the time in the Indian
society.

Since, homosexuality still remains remains pathologized on the religious and social spectrum
46
, section 377 is a valid restriction on freedom of speech and expression in the interest of
decency and morality.

(iii) SECTION 377 IS NOT VIOLATIVE OF ARTICLE 21 OF THE

CONSTITUTION.

Article 21 of the Constitution reads as:

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

Article 21 provides that the right to life and liberty is subject to procedure
prescribed by law.47 In Maneka Gandhi v Union of India48, the Hon’ble Supreme Court held
that Arts. 14, 19 and 21 are not mutually exclusive. This means that a law prescribing a
procedure for depriving a person of ‘personal liberty’ has to meet the requirements of Art. 19
and Art. 14. Thus, the procedure in Art. 21, “must be ‘right and just and fair’ and not
arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the
requirement of Art. 21 would not be satisfied”.

Section 4 of the Code of Criminal Procedure Act, 1973 provides “All offences
under the Indian Penal Code(45 of 1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter contained.” Thus, CrPC
prescribes a fair procedure before any person committing an offence u/s 377 IPC can be
punished. Further, courts have come forward and held that “In order to attract culpability u/s
377, it has to be established that: The accused had carnal intercourse with man, woman or

46
Pawan Singh, “Between Legal Recognition and Moral Policing: Mapping the Queer Subject in India”,
Journal of Homosexuality, (2016) 63:3, 416-425, DOI: 10.1080/00918369.2016.1124700.
47
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
48
Maneka Gandhi v. Union of India, AIR 1978 SC 597.

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animal, such intercourse was against the order of nature, the act of the accused was done
voluntarily, and there was penetration.”49

It is submitted that a well-established Code has been implemented to deal with

criminal complaints. No individual is convicted of an offence based on mere allegations. Even
an allegation or a complaint under Section 377 is followed up in the manner prescribed in the
CrPC. The offence under Section 377 is cognizable, non bailable and triable by the Magistrate
of the First Class. The trial held by the Magistrate of the First Class is guided by Sections 190
– 210 of the CrPC. Moreover, there is a presumption of innocence of the accused till proven
guilty and the burden of proof is on the prosecution. The prosecution has to prove the case
under Section 377 beyond reasonable doubt using the principles enshrined in the Indian
Evidence Act, 1872. The State intervenes only when a public-spirited person files a complaint
against the offending party (the accused).

Therefore, it is submitted that the procedure for prosecution under section 377 of IPC does not
violate either the test of Arbitrariness under Article 14 or the test of Reasonableness under
Article 19, hence by the principle laid down, it does not violate Article 21.

I. Section 377 does not violate right to privacy.

Paragraph 3 of the operative Order of Justice K.S. Puttaswamy and Ors. v. Union of India
(UOI) and Ors.50 states that “the right to privacy is protected as an intrinsic part of the right
to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part
III of the Constitution.” Paragraph 4 continues: “Decisions subsequent to Kharak Singh
which have enunciated the position in (iii) above lay down the correct position in law.”

Therefore, it is submitted that pparagraphs 3 and 4 of the Operative Order, read

together, preserve both the Court’s limitations jurisprudence that it has developed for
fundamental rights such as Articles 14, 19, and 25 (which cover facets of privacy), as well as
the more rigorous jurisprudence that it has specifically developed for privacy under Article
21.

To explain the limitation jurisprudence in the words of Justice Chandrachud,

writing the plurality opinion, “a law which encroaches upon privacy will have to withstand

49
Calvin Francis v. Orissa, 1992 (2) Crimes 455; 1992 (1) OLR 316.
50
AIR 2017 SC 416.

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the touchstone of permissible restrictions on fundamental rights.”51 To the extent that a
privacy claim is grounded in a right other than Article 21 of the Constitution (such as Article
14, or 19(1), or 25), its validity will be tested on the basis of established, existing
jurisprudence on the limitations of those rights, there is harmony in all the opinions of the
Hon’ble Judges.

It is submitted that there is split on the meaning of rigorous variant of standard that
the court has developed specifically for privacy under Article 21.

For Justice Bobde, for instance, read the “just, fair, and reasonable” standard under
Article 21 as requiring only a showing by the State that its law was “rational”. 52 Justice Sapre
provided his own articulation, laying down a standard of “social, moral and compelling
public interest in accordance with law.”53 Justice Nariman did not articulate any separate
standard under Article 21. Justice Chelameswar, most clearly recognised the distinction
between a standard “just, fair, and reasonable” test, and the “compelling State interest” test –
which he called “the highest standard of scrutiny that a Court can adopt.”54 He noted that:

“The just, fair and reasonable standard of review under Article 21 needs no
elaboration. It has also most commonly been used in cases dealing with a privacy
claim hitherto.64 Gobind resorted to the compelling state interest standard in
addition to the Article 21 reasonableness enquiry. From the United States where
the terminology of ‘compelling state interest’ originated, a strict standard of
scrutiny comprises two things- a ‘compelling state interest’ and a requirement
of ‘narrow tailoring’ (narrow tailoring means that the law must be narrowly
framed to achieve the objective). As a term, compelling state interest does not
have definite contours in the US. Hence, it is critical that this standard be adopted
with some clarity as to when and in what types of privacy claims it is to be used.
Only in privacy claims which deserve the strictest scrutiny is the standard of
compelling State interest to be used. As for others, the just, fair and reasonable

51
Ibid., Conclusion H.
52
Ibid., ¶45.
53
Ibid., ¶33.
54
Ibid., ¶43.

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 standard under Article 21 will apply. When the compelling State interest standard
is to be employed must depend upon the context of concrete cases.”55

According to Justice Chandrachud’s plurality, which had the support of four judges:

“An invasion of life or personal liberty must meet the three-fold requirement of
(i) legality, which postulates the existence of law; (ii) need, defined in terms of a
legitimate state aim; and (iii) proportionality which ensures a rational nexus
between the objects and the means adopted to achieve them.”

As per Justice Kaul:

“The concerns expressed on behalf of the petitioners arising from the possibility
of the State infringing the right to privacy can be met by the test suggested for
limiting the discretion of the State: “(i) The action must be sanctioned by law; (ii)
The proposed action must be necessary in a democratic society for a legitimate
aim; (iii) The extent of such interference must be proportionate to the need for
such interference; (iv) There must be procedural guarantees against abuse of
such interference.”56

It is submitted that Justice Kaul’s test articulates, in more express terms, the test
suggested by the plurality. Since, it is a well-settled position of law that when a Court is
“split” on a particular point, the separate opinion that makes a plurality a majority becomes
the “controlling opinion” on that point.

Therefore, it is submitted that Justice Kaul’s four-factor test – which is a clearer

articulation of the plurality’s proportionality standard – is now the law of the land when it
comes to assessing the constitutionality of privacy violations.

It is humble submitted before this Hon’ble Court that, Section 377 passes the four-prong test
as laid down by Justice Kaul and thus, it does infringe right to privacy as laid down by Justice
K.S. Puttaswamy v. Union of India57.

A. Sanctioned by law-

55
Ibid., ¶45.
56
Ibid., ¶45.
57
Supra.

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It is submitted that section 377 is sanctioned by law, as it has been recognised as a law under
Article 13 of the Constitution of India and thus, it passes the first test.

B. Legitimate Aim –

As laid down by the dissenting opinion given by Justice Scalia and Justice Thomas in
Lawrence v. Texas58 wherein it was stated that promotion of majoritarian sexual morality was
a legitimate state interest.

It is submitted that the object of prosecuting offenders under the Penal Code who
commit an offence by going against the nature and affecting the human body is necessary in
India since homosexuality still remains remains pathologized on the religious and social
spectrum59 and if such acts are not restricted, it will affect public morality and public order
which the legislature is duty bound to protect.

C. Proportionality -

In Modern Dental College and Research Centre and Ors. Vs. State of Madhya Pradesh and
Ors.60, the Hon’ble Supreme Court held

“53….Thus, while examining as to whether the impugned provisions of the statute

and Rules amount to reasonable restrictions and are brought out in the interest of
the general public, the exercise that is required to be undertaken is the
balancing of fundamental right to carry on occupation on the one hand and the
restrictions imposed on the other hand. This is what is known as 'Doctrine of
Proportionality'. Jurisprudentially, 'proportionality' can be defined as the set of
Rules determining the necessary and sufficient conditions for limitation of a
constitutionally protected right by a law to be constitutionally permissible. …

56. In this direction, the next question that arises is as to what criteria is to be
adopted for a proper balance between the two facets viz. the rights and limitations
imposed upon it by a statute. Here comes the concept of 'proportionality', which is
a proper criterion. To put it pithily, when a law limits a constitutional right, such
a limitation is constitutional if it is proportional. The law imposing restrictions
will be treated as proportional if it is meant to achieve a proper purpose, and if
the measures taken to achieve such a purpose are rationally connected to the
purpose, and such measures are necessary. …

58
539 U.S. 558 (2003).
59
Supra.
60
AIR 2016 SC 260.

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 57. The exercise which, therefore, to be taken is to find out as to whether the
limitation of constitutional rights is for a purpose that is reasonable and
necessary in a democratic society and such an exercise involves the weighing up
of competitive values, and ultimately an assessment based on proportionality i.e.
balancing of different interests.

58. We may unhesitatingly remark that this Doctrine of Proportionality,

explained hereinabove in brief, is enshrined in Article 19 itself when we read
Clause (1) along with Clause (6) thereof. While defining as to what constitutes a
reasonable restriction, this Court in plethora of judgments has held that the
expression 'reasonable restriction' seeks to strike a balance between the freedom
guaranteed by any of the sub-clauses of Clause (1) of Article 19 and the social
control permitted by any of the Clauses (2) to (6). It is held that the expression
'reasonable' connotes that the limitation imposed on a person in the enjoyment of
the right should not be arbitrary or of an excessive nature beyond what is
required in the interests of public. …”

It is submitted that the interreference to privacy in Section 377 is proportional to the need of
such interference, since section 377 passes the reasonability test under Article 19(2) which is
ultimately a test on proportionality.

D. Procedural Safeguard -

It is submitted that there exists procedural guarantee against the abuse of such interference in
privacy as it has already been submitted that there exists just, fair and reasonable procedure
for prosecution in Section 377 IPC under the discussion of Article 21.

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 III. THAT SECTION 497 OF THE INDIAN PENAL CODE, 1860 IS
CONSTITUTIONAL, FOR IT DOES NOT VIOLATE ARTICLE 14 OF
THE CONSTITUTION OF INDIA

It is most humbly submitted by the Respondent that Section 497 of the Indian Penal Code,
1860 is constitutional, being non – violative of Article 14 of the Constitution of India.

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

(i) THE LEGISLATIVE HISTORY IS ESSENTIAL FOR UNDERSTANDING

THE CONSTITUTIONALITY OF THE ACT.

In the present case, it is essential to understand the background and the legislative intent
behind the enactment of Section 497 of the Indian Penal Code, 1860 to decide on its
constitutional validity. The object of the legislation can be gleaned only from appreciating the
need for the impugned legislation. The intent is an essential feature for adjudicating on the
constitutionality of a Section, to ensure synergy between the Judiciary and the Legislature
regarding the enactment.61

a. The need for Section 497 of the Indian Penal Code, 1860.

The framers of the Code did not make adultery an offence punishable under the Code
because:

"It seems to us that no advantage is to be expected from providing a punishment

for adultery. The population seems to be divided into two classes - those whom
neither the existing punishment nor any punishment which we should feel
ourselves justified in proposing will satisfy, and those who consider the injury
produced by adultery as one for which a pecuniary compensation will sufficiently
atone. Those whose feelings of honour are painfully affected by the infidelity of
their wives will not apply to the tribunals at all. Those whose feelings are less

61
D.K. Trivedi and Sons v. State of Gujarat, AIR 1986 SC 1323.

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 delicate will be satisfied by a payment of money. Under such circumstances, we
think it best to treat adultery merely as a civil injury.”62

But the Second Law Commission, after giving due consideration to the subject,
concluded that it was not advisable to exclude this act as an offence from the Code. The
authors of the Code observed:

“While we think that the offence of adultery ought not to be omitted from the
Code, we would limit its cognizance to adultery committed with a married
woman, and considering that there is much weight in the last remark in Note 'Q',
regarding the condition of the women in this country, in deference to it, we would
render the male offender alone liable to punishment.”63

“Though we well know that the dearest interests of the human race are closely
connected with the chastity of women and the sacredness of the nuptial contract,
we cannot but feel that there are some peculiarities in the state of society in this
country which may well lead a humane man to pause before he determines to
punish the infidelity of wives. The condition of the women of this country is
unhappily, very different from that of the women of England and France; they are
married while still children; they are often neglected for other wives while still
young. They share the attentions of husband with several rivals. To make laws for
punishing the inconstancy of the wife, while the law admits the privilege of the
husband to fill his zenana with women is a course which we are most reluctant to
adopt. We are not so visionary as to think of attacking, by law, an evil so deeply
rooted in the manners of the people of this country as polygamy. We leave it to the
slow, but we trust the certain operation of education and of time. But while it
exists, while it continues to produce its never-failing effects on the happiness and
respectability of women, we are not inclined to throw into a scale, already too
much depressed, the additional weight of the penal law.”64

62
Law Commission of India, 42nd Report on Indian Penal Code,1860 (1971) at pp. 20.13 cited Macaulay's Draft
Penal Code (1837), Notes-Note Q, pp. 90-93.
63
Law Commission of India, 42nd Report on Indian Penal Code, (1971), p. 365 cited Second Report on the Draft
Indian Penal Code (1847), pp. 134-35.
64
Justice KT Thomas and MA Rashid (eds.), Ratanlal & Dhirajlal: The Indian Penal Code 1011 (Lexis Nexis,
33rd edn).

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 The Malimath Committee in its Report has held that the object of this section is to
preserve the sanctity of marriage and decriminalisation of adultery will result in weakening
the sanctity of a marital bond and laxity in the marital bond.65

b. Nature of the Offence.

This Section defines an offence against marriage in the following terms:

“Adultery- Whoever has sexual intercourse with a person who is and whom he knows or has
reason to believe to be the wife of another man, without the consent or connivance of that
man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either...”

The Bombay High Court in Bibhishan Yadav Deshmukh v State of Maharashtra 66 has
defined the nature of adultery as:

“For any husband, specially a Hindu, there can be no graver and more sudden
and shocking provocation than to find his wife in a compromising position with
someone else. Adultery is a breach of carnal obligations of marriage and
continence and fidelity are the bed-rock on which any marriage is founded.
Words are incapable of extolling their value.”

The above view validates the fact that the said Section which deals with the offence
against marriage is integral to prevent the deterioration of the sanctity of marriage and marital
bonds of persons in the country. Section 497 purports, safeguards and protects the institution
of marriage. It is submitted that striking down Section 497 of the IPC and Section 198(2) of
the CrPC will be detrimental to intrinsic Indian ethos that give paramount importance to the
institution and sanctity of marriage. It is therefore submitted that de-criminalising adultery
will destroy the institution of marriage in the country like India, where marriages are
considered as a divine sanctity.

(ii) APPLICATION OF SECTION 497 DOES NOT EXTEND TO SAME SEX

CONDUCT

65
Government of India, Report: Committee on Reforms of Criminal Justice System (Ministry of Home Affairs,
2013), available at: https://mha.gov.in/sites/default/files/criminal_justice_system.pdf (Visited on August 15,
2018).
66
1996 Cri LJ 1108.

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It is most humbly submitted before this Hon’ble Court that the section 497 of the IPC does
not apply in cases of same-sex conduct as the gravamen of the offence is consensual sexual
intercourse by a man with a woman (who is believed to be the wife of another man).

a. That sexual intercourse as envisaged in the Section 497 requires sexual

intercourse between two people of the opposite sex.

The term ‘sexual intercourse’ has not been defined under Section 497 of the IPC. The
jurisprudence of the term ‘sexual intercourse’ is propounded with respect to rape laws.
Therefore, it is submitted that this Hon’ble Court will have to look at the other sources of
statutory or precedents to determine whether the term is a blanket one that covers all forms of
sexual activity or whether it is limited to something narrower.

The High Court of Kerala in State of Kerala v Kundumkara Govindam67, defined

sexual intercourse as:

“By a metaphor the word intercourse, like the word commerce, is applied to the
relations of the sexes. Here also there is the temporary visitation of one
organism by a member of the other organization, for certain clearly defined and
limited objects. The primary object of the visiting organization is to obtain
euphoria by means of a detent of the nerves consequent on the sexual crisis. But
there is no intercourse unless the visiting member is enveloped at least partially
by the visited organism, for intercourse connotes reciprocity.”

In Parikh's Textbook of Medical Jurisprudence and Toxicology, the definition of

sexual intercourse is as follows:

“Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of
the vulva by the penis with or without emission of semen.”68

The plain and ordinary meaning of sexual intercourse is “sexual connection esp.
between humans: Coitus Copulation.”69 Coitus is defined to require “insertion of the penis
in the vagina”70, which clearly can only take place between persons of the opposite gender.

67
1969 Cri LJ 818.
68
Madan Gopal Kakkad v. Naval Dubey and Ors, 1992 SCC (3) 204.
69
Philip Babcock Gove (ed.), Webster’s Third New International Dictionary 2082 (Merriam-Webster, 1993).
70
Ibid

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 Thus, the various sources of the definition of sexual intercourse have defined it with
respect to penile-vaginal intercourse only and the only possible way to have penile – vaginal
intercourse is if the sexual intercourse is between opposite sexes.

Therefore, it can be gathered that the definition of adultery only includes sexual intercourse
between opposite sex and not same sex. Thus, the very first and most important ingredient of
sexual intercourse is not fulfilled in the case of homosexual intercourse.

(iii) SECTION 497 OF THE CODE IS NOT VIOLATIVE OF ARTICLE 14.

Article 14 of the Constitution espouses non-arbitrariness of classification and compliance

with the principles of natural justice.71 Reasonable classification is the test for the
applicability of Article 14. Keeping this fundamental in consideration, the vires of Section
497 shall be proved hereunder.

It is pertinent to mention that Article 14 bars discrimination and prohibits

discriminatory law, but equality cannot be guaranteed when it arises out of an illegality. 72The
‘void for vagueness’ principle is an extension of Article 14.73 It only prohibits laws that fail
either to give proper notice to regulate parties or to meaningfully limit the discretion of their
enforcers. It is only when there is no discernible reasonable principle for the manner in which
to act, for adopting a procedure, that a particular action or legislation may be labelled
‘arbitrary’.74

Moreover, Section 497 has stood the test of constitutionality in the landmark cases of
W. Kalyani, V Revathi, Smt. Sowmithri Vishnu v. Union of India75, Yusuf Abdul Aziz v. State76
and Yusuf Aziz v. State of Bombay77 that section 497 of the IPC is not violative of right to
equality enshrined under Article 14 of the Indian Constitution.

Homosexuals and heterosexuals engaging in the same acts are treated the same because our
interpretation of the term "adultery" excludes all non-coital sex acts, whether between
persons of the same or opposite gender. The only distinction is that persons of the same

71
M. Nagaraj v. Union of India, AIR 2007 SC 1.
72
General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205.
73
Romesh Thapar v. State of Madras, AIR 1950 SC 124, A.K. Roy v. Union of India, AIR 1982 SC 710, Kartar
Singh v. State of Punjab, (1994) 3 SCC 569.
74
Banari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625.
75
1985 Cri LJ 1302.
76
AIR 1951 Bom 470, 1952 Cri LJ 23.
77
AIR 1954 SC 321.

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gender cannot, by definition, engage in the one act that constitutes adultery under the statute.
Thus, under Section 497 the definition is only restricted to “sexual intercourse” only meaning
thereby that the intention of the Legislature is only to include sexual activity between
opposite sex.

(iv) THE PETITIONER’S ARGUMENT GOES TO THE POLICY OF THE

LAW RATHER THAN IMPLEMENTATION OF LAW

It is submitted that the sexual intercourse in any form between a man with another man would
not fall within the definition of adultery and would therefore not constitute adultery. It goes to
the policy of the Law rather than the implementation of law and therefore, the court is not
empowered to legislate. As noted above, the concept of adultery was premised upon a
specific act. To include in that concept other acts of a sexual nature, whether between
heterosexuals or homosexuals, would change beyond recognition this well-established ground
for divorce and likely lead to countless new marital cases alleging adultery, for strategic
purposes. In any event, “it is not the function of the judiciary to provide for present needs by
an extension of past legislation.”

Assuming that the situation has undergone changes since the inception of this
provision in the Penal Code, it is therefore the Legislature to consider whether section 497
should be amended appropriately so as to take note of the ‘transformation’ which the society
has undergone. The legislature is required to deal with diverse problems arising out of an
infinite variety of human relations. It must, therefore, necessarily have the power of making
laws to attain particular objects and, for that purpose, distinguishing, selecting and classifying
persons and things upon which its laws is to operate.

The argument that the definition should be recast by extending the ambit of the
offence of adultery so as to include both the man and the woman in a homosexual
relationship should be punishable for the offence of adultery. If this argument is to be
accepted, several penal laws may have to be struck down on the ground that, either in their
definition or in their prescription of punishment, they do not go far enough. In the case of
Smt. Sowmithri Vishnu Case78, where the extension of the ambit of the definition of adultery
was considered, the court while upholding the argument gave the example of offence of
robbery that it is punishable for ten years under Section 392 of IPC but is only punishable

78
Smt. Sowmithri Vishnu v. Union of India & Ors., 1985 AIR 1618, 1985 SCR Supl. (1) 741.

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with a sentence of five years only: ‘Breaking a matrimonial home is not less serious crime
than breaking open a house’. Such arguments about extending the definition goes to the
policy of the law, and not to its constitutionality. It is therefore submitted that in defining the
offence of adultery so as to restrict the class of offenders to men involved in heterosexual
relations, no constitutional provision is infringed.

Therefore, Section 497 is not violative of Article 14 of the Constitution of India.

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 PRAYER

Wherefore, in light of the facts stated, arguments advanced and authorities cited, the
Respondent humbly prays before this Honourable Court, to be graciously pleased to:

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

AND/OR

Pass any other order that the Court may deem fit in light of Justice, Equity and Good
Conscience.

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

RESPECTFULLY SUBMITTED

COUNSELS ON BEHALF OF THE RESPONDENT

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