Why direct supreme court not high court?

The counsel humbly submits that in Romesh Thappar(1) the supreme court ruled that such a petition
can come straight to the supreme court without going to high court first. The court stated that unlike
Art.226, art 32 confers a fundamental right on the individual and imposes an obligation on the
supreme court which it must discharge when a person complains of infringement of a fundamental
rights. Article 32 provides a guaranteed remedy for the enforcement of fundamental rights and
constitute the supreme court as the “ guarantor and protector of fundamental rights”. This
proposition has been reiterated by the SC in a number of cases.

The petitioner humbly submit that the instant PIL is maintainable under A 32 of the Indian
constitution. This argument is fourfold. Firstly the petitioner has a bonafide interest and hence he
has a locus standi[1.1]. secondly, the fundamental rights of the citizens have been violated[1.2].
thirdly the alternative remedy available to the petitioner is no bar to maintainability.

1.1

1.4. ALTERNATIVE REMEDY DOES NOT BAR ISSUE OF WRIT UNDER ART. 32:When a breach

of fundamental right is made in the petition there the provisions of other remedies do not

stand in the way of exercising power under Art. 32 of the Constitution of India. It was

held in the case ofCoffee Board v. Jt. Commercial Tax Officer7

. It is wholly erroneous to assume that before the jurisdiction of the Supreme Court could be invoked
the applicant must either establish that he has no other remedy adequate or otherwise or that he
hasexhausted such remedies as the law affords and has yet not obtained proper redress, for

when once it is proved to the satisfaction of the Supreme Court that by state action the

fundamental right of a petitioner under Art. 32 has been infringed, it is not only the right

but also the duty of the Supreme Court to afford him by passing appropriate order in that

behalf. 8

The mere existence of an adequate alternative legal remedy cannot per se be a good and

sufficient ground for throwing out a petition under Art.32 if the existence of a

fundamental right and breach, actual or threatened, of such right and is alleged prima

facie established on the petition.9

5Shamim Rehmaneyv. Zinat KausarDehalvi, 1971 Cr.L.J. 1586 at p. 1588(All.) 6Lakhan Singh v. Balbir
Singh, AIR 1953 All. 342 at p.343 7AIR 1971 SC 870 at p. 877, ¶ 16 8KharakSingh v. State of U.P., AIR
1963 SC 1295 9KK Kochunniv. State of Madras, AIR 1959 SC 725

In State of Punjab v. Shamlal Murai the Court approved in no unmistakable terms the approach of
moderating into wholesome directions what is regarded as mandatory on the principle that:
“Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice.
Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the
administration of justice.”[p. 720]

Previously, in cases like C.A. Gopalanv. Inspector General of Police,16State of Bihar v. Ranchi Zila
Samiti Party,17 the Supreme Court had exercised its power under Art. 32,129 and 14218 , overriding
the ordinary law, to order C.B.I. probe without the consent of the concerned state govt. despite the
fact that investigation fell within the purview of the state police.

16 1993 Cr LJ 1543(Ker) 17AIR 1996 SC 1515 18 Constitution of India, 1949

Right to privacy

1.2.1. It is submitted that, Right to Privacy is an integral part of right to life guaranteed under Art.
2119 of the Constitution.20 Once the facts in a given case constitute a right to privacy, Article 21 is
attracted. The said right cannot be curtailed except according to procedure established by law.21
Right to Privacy is also a fundamental human right recognized in the UN Declaration of Human
Rights, 1948,22 the International Covenant on Civil and Political Rights, 197623 and in many other
international and regional treaties. Privacy underpins human dignity and other key values such as
freedom of association and freedom of speech. It has become one of the most important human
rights issues of the modern age. Privacy is the most cherished of freedoms in a democracy, and he
was concerned that it should be reflected in the Constitution.24 1.2.2. It is further submitted that, in
India the question of right to privacy was first raised in Kharak Singh's case.25 In this case Subba Rao,
J. had observed that: "the right to personal liberty takes in not only a right to be free from
restrictions placed on his movements, but also free from encroachments on his private life. It is true
our Constitution does not expressly declare a right to privacy as a fundamental right, but the said
right is an essential ingredient of personal liberty." 1.2.3. Privacy is a basic human right and the
reasonable expectation of every person. 26 In the instant case, the right to privacy of Amersian
citizens and PAOs having bank accounts in Britussia has been violated by the Government of
Britussia who shared their information of bank accounts with the Government of Amersia without
seeking their permission to do so. Such an act is a grave infringement upon privacy of the Amersian
citizens and PAOs having bank accounts in Britussia.

19 Article 21 of the Constitution of India – Protection of life and Personal Liberty. 20 People’s Union
for Civil Liberties v. Union of India, AIR 1997 SC 568; R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
21 Ibid. 22 Article 12 of UDHR. 23 Article 17 of ICCPR. 24 W. Samuel and L. Brandeis, The right to
privacy, 4 HLR., p. 193 – 200 (1890). 25 Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295

1.3.4. It is submitted that, Article 21, though couched in negative language confers on every person
the fundamental right to life and personal liberty39. This right has been given paramount
importance by our Courts. 40 The object of article 21 is to prevent encroachment upon personal
liberty by the executive, save in accordance with law, and in conformity with the provisions
thereof.41 Personal Liberty also includes the right to socialize with members of one's family and
friends.42 1.3.5. It is to be understood that before a person is deprived of his life or personal liberty
the procedure established by law must be strictly followed and must not be departed from to the
disadvantage of the person affected. 43 In each case where a person complains of the deprivation of
his life or personal liberty, the Court in the exercise of its constitutional power of judicial review, has
to decide whether there is a law authorizing such deprivation and whether, in the given case, the
procedure prescribed by such law is reasonable, fair and just, and not arbitrary, whimsical and
fanciful. 44 Hence, it is submitted that, procedure under which the information was exchanged
under DTAA45 were arbitrary, whimsical and fanciful, and thus caused loss of personal liberty as
they do not contain any provision for checking the credibility of the information to be shared which
is a typical instance of abuse of power and departure from the procedure established by law. 38
Compromis ¶ 10. 39 Bhagwati, J. In Maneka Gandhi v. UOI, (1978) 1 SCC 248. 40 Kehar Singh v. UOI,
(1989) 1 SCC 204. 41 Narinderjit Singh Sahni v. Union of India, (2002) 2 SCC 210, 237-38 (¶ 57). 42
Kadra Pahadiya v. State of Bihar, AIR 1982 SC 1167 (¶ 2). 43 Makkhan Singh Tarsikka v. State of
Punjab, AIR 1952 SC 27. 44 Francis Coralie Mullin v. Union Territory of Delhi, Administrator, AIR 1981
SC 746 (¶ 3). 45 Article 26 of the DTAA.

The provisions is being discriminative in two ways

First it doesn’t give the women the right to prosecute an adulterous husband.

Secondly it doesn’t punish a women in adultery not even as an abettor.

When there is a sexual intercourse take place with the consent of both parties, then there is no good
reason for excluding one party from the liability.

Js. Ks puttuswami (rtd) v. union of india,

Since sexual privacy is an integral part of “right to privacy” section 198(2) of CrPc is also violative of
Article 14, 15 and 21 of constitution of india.

And it excludes women from prosecuting anyone engaging in adultery.

CASE ANALYSIS

SECTION 497 VIOLATES THE ARTICLE 14 OF THE INDIAN CONSTITUTION

The provision of Section 497 of the Indian Penal Code is discriminatory and violative of Article
14 of the Indian Constitution. Section 497 of The Indian Penal code and Section 198 of Criminal
Procedure Code of 1973 makes it clear that only a man can be penalised for the commission of
adultery. This is evident from Section 198(2) of Criminal Procedure Code and Section 497 which
criminalizes sexual intercourse with a married woman. This provision does not deal the aspect
of sexual intercourse with an unmarried woman. Further if the act is conducted with the
consent of husband of the married woman than the act is no longer the offence of adultery.
Primarily Section 497 of the Indian Penal Code discriminates against men. In a sexual
intercourse with the consent of both the parties there is no good reason to punish only one
parties of such intercourse. There is no rational of penalising only one of the participants of the
intercourse. It has been held by the Supreme Court in number of the cases that person situated
similarly cannot be subjected to discriminatory or dissimilar treatment. Thus, this is the crux of
the constitutional guaranteed under Article 14 of the Indian Constitution. The true scope of
Article 14 of the Indian Constitution was highlighted in the case of Maneka Gandhi v. Union of
India[1] in which it was held by the Supreme Court that:

“The basic principle which therefore informs about Article 14 is equality and inhibition against
discrimination. Equality is a dynamic concept which cannot be crib bled cabined and confined
with the traditional and doctrinaire limit. From a positivistic point of view, equality is antithetic
to arbitrariness. [2] It is in fact that equality and arbitrariness are the sworn enemies as one
belongs to the rule of law in a republic while other to the whim and caprice of an absolute
monarchy. Where an act is absolutely arbitrary it is implicit in that it is unequal both according
to the political logic and constitutional law and therefore is violative of Article 14 of the Indian
Constitution.

Further in the case of Ajay Hasia v. Khalid Mujib[3] it was held as follows that

“If the society is an authority and therefore the State within the meaning of Article 12 it must
follow that it is the subject to the constitutional obligation under Article 14 of the Indian
Constitution. The true scope and ambit of Article 14 of the Indian constitution has been the
subject matter of the numerous dimensions. Article 14 came to be identified with the doctrine of
classification because the view was taken that Article 14 forbids discrimination and there would
be no discrimination where the classification making the discrimination fulfil the two
conditions”.

Firstly that the classification is founded on intelligible differentia which distinguishes the
person that is grouped together from others left out of the group.
Secondly differentia has a rational relation to the subject sought to be achieved by the impugned
legislations or executive action.
Thus Section 497 of the Indian Penal Code and Section 198(2) of Criminal Procedure Code 1973
fail to meet the test of equality. The implication and proposition that men are arbitrarily
punished and women are not for committing the same act is unjust, illegal and unconstitutional.

Further in the case of Ajay Hasia v. Khalid Mujib[3] it was held as follows that “If the society is
an authority and therefore the State within the meaning of Article 12 it must follow that it is the
subject to the constitutional obligation under Article 14 of the Indian Constitution. The true
scope and ambit of Article 14 of the Indian constitution has been the subject matter of the
numerous dimensions. Article 14 came to be identified with the doctrine of classification
because the view was taken that Article 14 forbids discrimination and there would be no
discrimination where the classification making the discrimination fulfil the two conditions”.

Firstly that the classification is founded on intelligible differentia which distinguishes the
person that is grouped together from others left out of the group.
Secondly differentia has a rational relation to the subject sought to be achieved by the impugned
legislations or executive action.
Thus Section 497 of the Indian Penal Code and Section 198(2) of Criminal Procedure Code 1973
fail to meet the test of equality. The implication and proposition that men are arbitrarily
punished and women are not for committing the same act is unjust, illegal and unconstitutional.
SECTION 497 OF THE INDIAN PENAL CODE INFRINGES RIGHT TO LIFE AND RIGHT TO PRIVACY
EMBODIED UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION.

Section 497 of the Indian Penal code suffers from the vices of irrationality, arbitrariness and
perversity to the extent that right to life includes right to engage in sexual intercourse as an intrinsic
part of right to life under Article 21 of the Indian Constitution. A large number of judgements
delivered in the foreign courts have recognised the right to privacy as falling in one or the other
aspect of human rights. In the case of Child rearing and education, Pierce v. Society of sisters [5] , it
was held that right to privacy of an individual is essentially a natural right which inheres in every
human being by birth. Such right remains with the human being till he/she breathes the last breath.
It is indeed inseparable and inalienable from human being. Thus, right to privacy invariably has to
include the right to sexual privacy also. In the case of Bowers v. Hardwick[6] Justice Blackmun
observed that depriving individual of the right to choose for them how to conduct their intimate
relationship poses greater threat to the values that are most deeply rooted in the nation. There is no
reason to criminalize consensual sexual intercourse between the two adults. In the case of Lawrence
v.Texas[7] it was held that the criminal laws against adultery were held not be in legitimate state
interest. On global as well as in the International level there has been concern about decriminalising
adultery. Recently in the year 2015 the Supreme Court of South Korea has struck down the offence
of adultery and stated that it violates the basic human rights and international obligations. in the
year 2012 the working group on the issue of discrimination against the women in law and practice
established by the United Nations in the year 2010 had urged the countries to eliminate laws that
classify adultery as a criminal offence. The Supreme Court in the case of Shafin Jahan v. Asokan
N.M[8] observed that;

“The Constitution of India recognises the liberty and autonomy which inheres in each individual. This
includes the ability to take decision on aspects which defines one’s personhood and identity. The
choice of partner whether within or outside the marriage lies with the exclusive domain of each
individual. An intimacy of marriage lies within the core zone of privacy which is inviolable. Neither
the State nor the law can dictate a choice of partners or limit the free ability of person to decide on
these matters. They form the essence of personal liberty under the Indian constitution.
The Supreme Court in the landmark Judgement of K.S. Puttaswamy’s v. Union of India[9]
unanimously held and recognised the right to privacy as an overreaching fundamental right under
Indian Constitution which has encompassed within its ambit the right to dignity, autonomy and
bodily integrity and various other aspects of the personal life. The Supreme Court further observed
that:

“Privacy of the individual is an essential aspect of dignity. Privacy enables the individual to retain the
autonomy of the mind and the body. The autonomy of the individual is the ability to make decision
on the vital matters concerned with the life. Privacy of the body entitles an individual to the integrity
of the physical aspect of personhood. The intersection between one’s mental integrity and privacy
entitles the individual to the freedom of thought, freedom to believe in what is right and the
freedom of self determination. When these guarantees intersect with the gender they create a
private space which protects all those elements which are crucial to the gender equality. The
marriage, the family, the procreation and the sexual orientation are all integral to the dignity of the
individual. Above all the Privacy of the individual recognises inviolable right to determine how
freedom shall be exercised. The freedom guaranteed under Article 19 of the Indian Constitution can
only be fulfilled where the individual is entitled to take decision on its preference. Article 21 of the
Indian Constitution secure the liberty, dignity of the individual including what and how one will eat,
the one the way will dress, the faith the one will espouse and myriad other matter which autonomy
and self determination requires a choice to be made within the privacy of mind.

Thus, privacy includes at its core the preservation of personal intimacies, the sanctity of family life,
marriage, procreation, the home and the sexual orientation.

COMMENTS

In the case of Yusuf Abdul Aziz v, State of Bombay[10] the Double Bench of Bombay High Court held
that Section 497 of the Indian Penal Code does not violate Article 14, 15 of the Indian Constitution.

In the case of Sowmithri Vishnu v. Union of India and Anr[11] it was held by the Honourable
Supreme Court of India that the offence of adultery should also include women in its ambit.

On an international level many countries have repealed the offence of adultery as it violates the
principle of equality embodied in the International Statutes such Universal Declaration of Human
Rights. Section 497 violates the Article 14 of the Indian Constitution which lays for equitable
procedure for equality before law and distinguishes between the martial standing. It also impedes
women from initiating any criminal proceeding. Therefore Section 497 of the Indian Penal Code is
violative of Article 21 which in its ambit includes the right to privacy and domain of person’s liberty
over the other. Further it is apparent from Article 21 of the Indian Constitution that every individual
has unfettered power whether married or not, either man or woman to involve Sexual Intercourse
outside his or her martial relationship.

CONCLUSION

Thus, in the case of Joseph Shine v. Union of India, the Supreme Court Struck down 158 age old
offence of Adultery unconstitutional on the ground that Section 497 of the Indian Penal code is
violative against Article 14, 15 and Article 21 of the Indian Constitution. The Supreme Court making
reference to the Article 21 of the Indian Constitution stated that:

“Right to privacy is an inalienable right which is closely associated with the innate dignity of the
individual and right to autonomy and self determination to take decision.

[1] Maneka Gandhi v. Union of India, (1978)2 S.C.R. 621(India).

[2] E.P Royappa V State Of Tamil Nadu, 1974(4), S.C.C. 3 (India).

[3] Ajay Hasia v. Khalid Mujib, A.I.R. 1981, S.C. 487 (India).

[4] Thota Sesharathama and Anr. V. Thota Manikyamma and Others, (1991) 4 S.C.C. 312 (India).

[5] Child rearing and education, Pierce v. Society of sisters, 268 U.S. 510, (U.S.A).

[6] Bowers v. Hardwick 106 S. Ct 2841.

[7] Lawrence v.Texas 539 U.S 558(2003) (U.S.A).

[8] Shafin Jahan v. Asokan N.M 2018 SCC Online SC 343, (India).

[9]K.S. Puttaswamy’s v. Union of India (2017) 10 SCC 1

[10] Yusuf Abdul Aziz v, State of Bombay 1954 A.I. R. 321 (India).

[11] Sowmithri Vishnu v. Union of India and Anr, 1985 Supp S.C.C. 137(India).

130190219-Constitution-Moot-Memo-Harish-

I.A. MAINTAINABILITY OF PUBLIC INTEREST LITIGATION

1. IN 1981 JUSTICE P. N. BHAGWATI IN S. P. GUPTA V. UNION OF INDIA1( AIR 1982 SC 149),

ARTICULATED THE CONCEPT OF PIL AS FOLLOWS, “ANY MEMBER OF PUBLIC CAN

MAINTAIN AN APPLICATION FOR AN APPROPRIATE DIRECTION, ORDER OR WRIT IN THE

HIGH COURT UNDER ARTICLE 226 AND IN CASE ANY BREACH OF FUNDAMENTAL RIGHTS
OF SUCH PERSONS OR DETERMINATE CLASS OF PERSONS, IN THIS COURT UNDER ARTICLE

32 SEEKING JUDICIAL REDRESS FOR THE LEGAL WRONG OR LEGAL INJURY CAUSED TO

SUCH PERSON OR DETERMINATE CLASS OF PERSONS.”

THE PETITONER HAS LOCUS STANDI TO FILE A PETITION

2. It was made clear in Janata Dal v H.S. Chaudhary2 that only a person ‘acting bona fide3’and
‘having sufficient public interest’4in the proceeding of public interest litigation will have alone

1
AIR 1982 SC 149
2
AIR 1993 SC 892 ,¶ 64
3
Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844
“whenever there is a public wrong or public injury caused by an act or omission of the State or public authority
which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient
interest can maintain an action for redressal of such public wrong or public injury.
4
In Black's Law Dictionary (Sixth Edition)
Public Interest- Something in which community at large has some pecuniary interest or some interest by which
their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the
interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens
 the locus standi5 but not a person for personal gain or political motive or any oblique
consideration.
3. THE RULE OF LOCUS STANDI HAVE BEEN RELAXED AND A PERSON ACTING BONAFIDE AND
HAVING SUFFICIENT INTEREST IN THE PROCEEDING OF PUBLIC INTEREST LITIGATION WILL

ALONE HAVE A LOCUS STANDI AND CAN APPROACH THE COURT TO WIPE OUT VIOLATION

OF FUNDAMENTAL RIGHTS AND GENUINE INFRACTION OF STATUTORY PROVISIONS, BUT

NOT FOR PERSONAL GAIN OR PRIVATE PROFIT OR POLITICAL MOTIVE OR ANY OBLIQUE

CONSIDERATION.

Hence, it is humbly submitted that since there has been a violation of the fundamental rights, the
Court has the requisite jurisdiction to entertain this writ petition under Article 32 of the Constitution
of India bought as a Public Interest Litigation.

generally in affairs of local, state or national government. See also Vineet Narain v Union of India, AIR 1998
SC 889.
5
In Blacks’s Law dictionary (6th Edition)
Locus standi- the right to bring an action or to be heard in a given forum.