MEMORIAL FOR THE PETITIONER

TEAM CODE : MVNUNMC19-2041

JUSTICE P.N.BHAGWATI NATIONAL MOOT COURTCOMPETITION 2019

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

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VICKY

VS

UNION OF INDIA

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MEMORIAL FOR THE PETITIONER

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

COUNSEL FOR THE PETITIONER

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TABLE OF CONTENTS

1.LIST OF ABBREVIATIONS ----------------------------------------3

2.INDEX OF AUTHORITIES------------------------------------------4

3.STATEMENT OF JURISDICTION--------------------------------6

4. STATEMENTS OF FACTS-------------------------------------------7

5.STATEMENT OF ISSUES--------------------------------------------8

6. SUMMARY OF ARGUMENTS-------------------------------------9

7. ARGUMENTS ADVANCED----------------------------------------11

8. PRAYER-----------------------------------------------------------------22

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LIST OF ABBREVATIONS

1 AIR All India Reporter.

2. Anr. Another
3. Art. Article
4. HC High Court
5. Hon’ble Honourable
6. i.e. That is
7. IPC Indian Penal Code
8. NALSA National Legal Services Authority
9. NHRC National Human Rights Commission
10. Ors. Others
11. PIL Public Interest Litigation
12. SC Supreme Court
13. SCC Supreme Court Cases
14. SCR Supreme Court Reporter
15. Sec. Section
16. UDHR Universal Declaration of Human Rights
17. UN United Nation
18. US United States
19. v. Versus
20. TN Tamil Nadu
21. UoI Union of India
22. EHRR Essex Human Rights Review

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INDEX OF AUTHORITIES

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CASES CITED

1. S.P. Gupta v. Union of India, AIR 1982 SC 149

2. Indian Young Lawyers Associationv. Union of India, AIR 2017 SC 4904
3. Rural Entitlement and Litigation Kendra v. State of Uttar Pradesh, AIR 1985 SC 652
4. Santhosh Kumar Upadhyay v. State of Uttar Pradesh
5. National Legal Service Authority of India v. Union of India, AIR 2014 SC 563
6. Saksham Foundation Charitable v. Union of India, 2014 (5) ALJ 496
7. IshaTyagi v. State of Uttar Pradesh, 2014 6 AWC 6138 All
8. Dr. Vijay Verma v. Union of India, WP (PIL) No.17/2018
9. Kuck v. Germany, (2003) 37 EHRR 51
10. Toonen v. Australia, D 488/1992
11. Karner v. Austria, Application No. 40016/98
12. Pretty v. UK, Application No. 2346/02
13. National Coalition for Gay and Lesbian Equality v. The Minister of Justice, (1999)
ZAC C 17
14. Maneka Gandhi v. Union of India, AIR 1978 SC 597
15. Deepak Bajaj v. State of Maharashtra, AIR 2009 SC 628
16. Article 12 of Universal Declaration of Human Rights of 1948
17. Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972 of 2013
18. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632
19. People’s Union of civil Liberties v. Union of India, (1997) 1 SCC 301
20. Sharda v. Dharampal, (2003) 4 SCC 493
21. A.K. Gopalan v. Union of India, AIR 1950 SC 27
22. D.K. Yadav v. J.M.A Industries,(1993) 3 SCC 258
23. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
24. Navtej Singh Johar v. Union of India, (2018) 10 S.C.A.L.E 386
25. Kushboo v. Kanniammal, (2010) 5 SCC 600
26. Dr.AkkaiPadmashali v. Union of India, W.P (Civil) 572 of 2016
27. Joseph Shine v. Union of India, AIR 2018 SC 4898
28. NimeshbhaiBharatbhai Desai v. State of Gujarat, 2018 (1) RCR (Criminal) 263

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LIST OF BOOKS REFERRED

M.P. Jain , Constitution of India

D.D. Basu , Constitution of India

J.N. Pandey, The Constituitional law of India

Black’s law dictionary

LIST OF WEBSITES REFFERED

1. www.indiankanoon.com

2. www.manupatra.com

3. www.legalservicesindia.com

4. www.thehindu.com

5. www.thebluebook.com

6. www.wikipedia.org

7. www.scconline.com

8. www.indialawjournal.com

LEGISLATIONS

1. The Constitution of India, 1950.

2. Indian Penal Code,1860.

INTERNATIONAL REFERENCES

1. Universal Declaration of Human rights,1948

2. International Covenant on Civil and Political Rights

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STATEMENT OF JURISDICTION

The PETITIONER has approached this Hon’ble Supreme Court under Art.32 of the
Constitution.

The Petitioner maintains that there is a violation of fundamental rights.

Therefore this Hon’ble court has the jurisdiction to hear the case.

All of which is respectfully submitted

By:

Counsels for the petitioner

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STATEMENT OF FACTS

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(A) BACKGROUND

Cairoli is a Country whose social, legal, cultural, economic conditions and systems are
similar to that of India. It recognizes the Right to life, liberty & freedom as its fundamental
rights.

(B) RELAVANT FACTS

Vicky is a 21st-century girl .While in college she was a very dominating person and has
manly demeanor. She was always alone and isolated from the other classmates as her
interests are different and her friends thought she did not belong with them.

They always mocked at her for her manly attributes and made her the subject of jokes and
mimicry. After college, she had applied for a job & fared exceptionally well in the interview.
She was offered a handsome package & respectable position in the company based on her
capability. She confessed to one of her close colleagues that she had a different sexual
orientation and she was interested in females, not males. This news got spread into the office
like wildfire. She was getting all kinds of weird stares and comments.

Now, she was being cornered and targeted by everyone including her colleagues and the
manager.

(C) EVENTS THAT LED THIS CASE BEFORE THIS HON’BLE SUPREME COURT

She started missing from office on some pretext or the other for the fear of facing the
constant discrimination she was going through at work. She was unable to focus at work &
this affected her productivity badly. Eventually, she lost her job.

Finally, after going through all the social & emotional abuse, alienation & discrimination,
Vicky decided to knock the doors of the court for justice for her kind of people.

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STATEMENT OF ISSUES

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1: Whether the writ petition under Article 32 maintainable?

2: whether natural identity of an individual treated to be essential to his being ?

2.1 Is gender queer considered to be normal and natural?

2.2 Homosexuality is not a choice but a biological condition.

3:whether gender identity conforms with the human rights and the constitutionally
Guaranteed rights?

4.What is sexual orientation and gender identity? and their relationship

5. Whether right to life guaranteed under article 21 was infringed

5.1 Whether right to privacy was infringed?

5.2 Whether right to live with human dignity was infringed?
5.3 Whether right to livelihood was infringed?

6. Whether Sexual orientation and privacy lie at the core of Articles 14, 19 and 21 of the
Constitution?

7. Whether the grounds of “sex” under Articles 15 & 16 includes discrimination on the
ground of gender identity?

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SUMMARY OF ARGUMENTS

1. Whether the Writ Petition under Article 32 is maintainable?

The petitioner has locus standi to approach the court as she is representing her kind of people
who belong to the category of LGBTQ community, as a public spirited citizen. The Writ
petition is maintainable as there is infringement of fundamental rights. The counsel submits
that the court may take up the matter and deliver justice.

2. Whether natural identity of an individual is treated to be essential to his being?

A person may be assigned with a gender during birth but, it is not necessary that he conforms
to it as he grows. Having manly demeanours and being attracted to the feminine gender is
absolutely natural. Thus, gender identity and sexual orientation are definitely essential to
one’s being. People who fall into the queer category should not be considered abnormal.

3. Whether gender identity conforms with the human rights and the
constitutionally guaranteed rights ?

A person identifying himself to a particular gender and sexually orientating towards another
gender is well within constitutionally guaranteed rights. NHRC and the Yogakarta principles
firmly support the practice of homosexuality.

4. What is sexual orientation and gender identity? And their relationship?

Gender identity is the first step to sexual orientation. A person identifies himself to be of one
sex and consequently, finds himself oriented sexually towards another. Thus, sexual
orientation follows gender identity. Every person has a right to identify their own gender and
to orient sexually with the other.

5. Whether right to life guaranteed under article 21 was infringed?

Right to life includes right to privacy and right to live with dignity. A person’s choice of his
own gender and orienting with the other is necessarily within her privacy. Discriminating her
on this basis, is definitely a violation of Art.21.

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6. Whether Sexual orientation and privacy lie at the core of Articles 14, 19 and 21
of the Constitution?

The golden triangle throws light on the importance of sexual orientation and gender
identity in terms of privacy. These rights of the LGBTQ community has been abridged

7. Whether the grounds of “sex” under Articles 15 & 16 includes discrimination on

the ground of gender identity?

The expression “sex” under Art 15 and 16 includes Transgenders. They do not only deal
with the gender binary.

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ARGUMENTS ADVANCED
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1. Whether or Not The petition filed under art.32 is maintainable ?

It is humbly submitted the present petition is filed under Art. 32 of the constitution of Cairoli
It is in the nature of public interest litigation and the petitioner has locus standi to represent
the LGBT community as a public spirited citizen. It is humbly submitted that the writ petition
filed by the petitioner for equality is maintainable, and is independent of any alternative
remedy. The petitioner has the locus standi to file the Public Interest Litigation. Further, there
is infringement of fundamental rights and therefore the notification is being challenged as it
violates the basic structure. Article 32 of the Indian Constitution provides remedies for
enforcement of rights.

REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED UNDER THIS

PART:

1) The right to move 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 order of writs , including
writs in the nature of Habeas Corpus, Mandamus , Prohibition , Quo Warranto and Certiorari
whichever may be appropriate for the enforcement of any rights conferred by this part.
3)Without prejudice to the powers conferred on the Supreme court by clause (1) and
clause(2),Parliament may by law empower any other court to exercise within the local limits
of its jurisdiction all or any of the powers exercisable by the Supreme court under clause (2).
4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this constitution.

It is contended that public interest litigation is a cooperative and collaborative effort by the
petitioner the state of public authority and judiciary to secure observance of constitutional or
basic human rights.

The Petitioner has the locus standi to file the Public Interest Litigation
In the instant case, the Petitioner has filed by the way of Public Interest Litigation challenging
the legislative competency of the notification violating the Fundamental rights guaranteed by
the Constitution. It is humbly submitted that the courts exercising their power of judicial
review found to its dismay that a huge section of people facing discrimination and alienation
owing to their gender identity and sexual orientation have either no access to justice or had
been denied justice.

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Where a legal wrong or legal injury is caused to a person or to a determinate class of persons
by reason of violation of any constitutional right, any member of public can maintain an
application for appropriate direction, order or writ art 32 seeking judicial redress for the legal
wrong or legal wrong caused to such person of determinate class of persons1.

The petitioner acting in bona fide interests has the locus standi to file a public interest
litigation under art 32 of the constitution2 .The court relaxed the rule of locus standi and
observed that every citizen must act in public interest3.

WRIT PETITITION CAN BE FILED UNDER ART 32 FOR THE VIOLATION OF

FUNDAMENTAL RIGHTS .

Art 32 guarantees the right to file a petition for the violation of fundamental rights . In the
instant case ,The fundamental rights guaranteed under article 14, 15 , 16 , 19 21 are violated
and art 32 can be invoked . The Aggrieved party thus has to file the petition under art 32 of
the constitution . it is submitted that the writ filed by the petition is maintainable.

2.Whether Natural Identity Of an Individual Treated To Be Essential To His Being ?

2.1 What is gender identity ?

Gender identification means the identity which a person perceives to be. It is a self
concept or self identity made by person , in legal terms. Gender identity is also known as
core identity.

In Santhosh Kumar Upadhyay Vs State Of Up4 it was stated that gender identity
forms the core of one’s personal self, based on self identification , not on surgical or
medical procedure . Gender identity , is an integral part of sex and no citizen can be
discriminated on the ground of gender identity.

It is humbly submitted that gender identity , as already indicated , constitutes the core of
being as well as an integral part of a person’s identity .
Understanding gender is very difficult and challenging. Gender identity is an inherent
aspect of a person’s make up and is the personal sense of one’s own gender. Individuals do
not choose their gender, nor can they be made to change it . The two gender identities
most people are familiar with are boy and girl and the concept that there are only two
genders and an individual must be either one or the other is called the gender binary. This
is partially true .

However in the the NALSA5 judgement, they have clearly stated that the sex of a person is
usually assigned at birth ( male/female ). However a relatively small number of people

1
SP Gupta v. Union of India, AIR 1982 SC 149
2
Indian Young Lawyers Association v. Union of India, AIR 2017 SC 4904
3
Rural Entitlement and Litigation Kendra v. State of Uttar Pradesh, AIR 1985 SC 652
4
Writ – A No. 370 of 2016
5
National Legal Service Authority of India v. Union of India, AIR 2014 SC 563

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experience problems with being a member of sex recorded at birth. They grow to associate
themselves as the other gender. For example , if a person considers himself to be a male and
is most comfortable referring to his personal gender in masculine terms, then his gender
identity is male, though the individual is being born as a female and with a female
physiology. This is because their bodies incorporate both or certain aspects of male and
female physiology. They have trouble identifying themselves with the gender they are
assigned with at birth and the people who fall under that category are termed as” gender
queer”. It is clear from the above stand that having a different gender identity is very normal ,
natural and there is absolutely nothing queer about it .

Gender queer includes transgenders. The transgenders persons ( protection of rights)

bill gives a clear of definition of who a “transgender” is. The bill defines a transgender
person as one whose gender does not match the gender assigned at birth. It includes
transmen , transwoman , persons with intersex variations , gender queers, and persons
with socio- cultural identities, such as kinnar and hijra.It is thus clearly eshtablished
that the petitioner is a transgender and has a different gender identity.

Hijras , ennuchs apart from the binary gender , be treated as third gender for the
purpose of safeguarding their rights under part 3 of the constitution , the laws made by
the parliament and the state legislature .

Transgender persons right to decide their self identified gender is also upheld. the
centre and the state governments have directed to grant legal recognition of their
gender identity such as male, female or third gender. The bill also clearly mentions
that discrimination against a transgender is strictly prohibited including denial of
service or unfair treatment in relation to education, employment, healthcare, access to
or enjoyment of goods , facilities , opportunities available to the public opportunity to
hold public or private office etc,.

The SC held that the prohibition of discrimination on the ground of sex encompasses
discrimination on the ground of gender identity6.The expression “sex” used in articles
15 and 16 is not just limited to biological sex of male or female, but intended to
include people who consider themselves to be neither male or female. Discrimination
on the basis of sexual orientation or gender identity includes any discrimination,
exclusion restriction or preference, which has the effect of nullifying or transposing
equality by the law or the equal protection of laws guaranteed under our
constitution7.The bill also states that the penalty for a mental , physical , a social or an
emotional abuse may vary from six months to one year along with fine.
`

2.2 homosexuality is not a choice but a biological condition

The statement stated in the NALSA judgement8 “ the natural identity of an individual
should be treated to be essential to his being refers to another section / group of
society part from Transgenders. People with a different unique sexual orientation also
come under this umbrella . According to the APA sexual orientation refers to the sex

6
Saksham Foundation Charitable v. Union of India, 2014 (5) ALJ 496
7
IshaTyagi v. State of Uttar Pradesh, 2014 6 AWC 6138 All
8
SUPRA (5)

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of those to whom one is sexually and romantically attracted . sexual orientation

includes attraction to members of one’s own sex .

The research came to the conclusion that being gay , lesbian is a natural part of human life.
sexual orientation is a pattern of desire , not behaviour or sexual acts per se. It is not a simple
act of will or a performance . homosexuality is not a choice .Simon Levay in his study proved
that INAH 3 is twice as large in the heterosexual men than in the homosexual men. This
finding indicates that the INAH is dimorphic with sexual orientation i.e it shows a difference
between homosexuals and heterosexuals and suggest that homosexuality is a biological
phenomenon proven through studies. It cannot be considered as a phenomenon brought by
external factors and must be considered as natural.
The alienation , discrimination, abuse and the harassment that the LGBT community faces
affects their mental health taking a mental toll on their lives.

The Mental Health Care Act,2017 and the National Health Policy emphasise on mental
health and considers it very important for a person’s well being. In DR Vijay Verma vs
Union of India 9,It was stated that mental health is very essential , people with mental
disorders committing a crime must be represented at the courts and mental abuse must be
prevented to promote well being as a whole.

Gender identity in relation to human rights and constitutionally guaranteed rights.

The Constitution seeks to establish secular, socialist ,democratic republic wherein every
citizen has equality of status and of opportunity, to promote among the people dignity of the
individual , unity and integrity of the nation transcending them from caste, sectional, religious
barriers fostering fraternity among them in an integrated Bharat. With the advancement of
human rights and constitutional philosophy of social and economic democracy a democratic
polity to all the citizens has been placed on equal footing.

NHRC

The national human rights commission ( NHRC ) is of the view that all people regardless of
their sexual orientation or gender identity should be able to enjoy their human rights ,
reversing the judgement pronounced by the Delhi high court in 2009.

YOGAKARTA PRINCIPLES

The Yogyakarta Principles, a non-binding set of international standards, apply international

human rights standards to issues that affect the LGBTI community. Developed by a group of
experts, the Yogyakarta Principles have been used by the UN and other groups in their effort
to promote and protect the human rights of sexual minorities. The Principles affirm that
“human beings of all sexual orientations and gender identities are entitled to the full
enjoyment of all human rights.”

Yogyakarta Principles, identify a particular right and then sets forth the duties and
obligations that States should satisfy to ensure that LGBTI persons are able to exercise and
enjoy those rights.

9
WP (PIL) No. 17/2018

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The Yogakarta principles firstly, reflect existing formulations of human right standards with
sources of human right standards within sources of international human rights law . secondly
,these principles range the human right violations experienced by people of diverse sexual
orientations and gender identities in different regions of the world . Thirdly, the principles
provide recommendations to states for specific means of implementation of legal instruments
for protecting and recognising the rights applicable to sexual orientation and gender identity.

Generally, discrimination occurs when a person is treated differently than someone else in a
similar situation, and this treatment causes that person harm or prevents his or her enjoyment
of one or more human rights. principle 2 States that discrimination on the basis of sexual
orientation or gender identity can affect every aspect of life , including housing, education ,
employment, healthcare , and family life .Any distinction, exclusion, restriction or preference
based on sexual orientation or gender identity which has the purpose or effect of nullifying or
impairing equality before the law or the equal protection of the law, or the recognition,
enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms.

In kuck vs Germany10 , involving a transexual woman who was refused redress in German
courts for having been denied insurance coverage for the costs of sex reassignment surgery .
the court held that Germany had violated the woman’s right to autonomy of gender identity .

The UN Human Rights Council adopted Resolution 17/19 recognizing the acts of violence
and discrimination committed against LGBTI persons around the world and requesting a
report from the UN Office of the High Commissioner for Human Rights called the Human
Rights Council, Resolution 17/19: Human Rights, Sexual Orientation and Gender Identity.

In response to Resolution 17/19, the Office of the High Commissioner for Human Rights
(OHCHR) submitted a Report to the Human Rights Council outlining the problems facing the
LGBTI community and reiterating each State’s duty to protect the rights of all citizens called
the , Report of the United Nations High Commissioner for Human Rights on Discriminatory
laws and practices and acts of violence against individuals based on their sexual orientation
and gender identity.
The report recommends that all States investigate serious acts of violence, repeal laws
criminalizing homosexuality, and enacts legislation to prevent discrimination on the basis of
sexual orientation or gender identity.

International conventions

The International Covenant on Civil and Political Rights stated that if states do not take
appropriate steps to provide rights to the LGBTQI community and recognise them properly
then the individuals can take it up to to the appropriate courts and demand justice

Tasmanian laws criminalizing homosexuality were consistent with the State’s obligations
under Article 17 of the International Convention on Civil and Political Rights to respect the
applicant’s private life ,thus justice was sought accordingly. 11As indicated above, several
human rights bodies, including the Inter-American Commission and the European Court,

10
(2003) 37 EHRR 51
11
Toonen v. Australia, CCPR/C/50/D/488/1992

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have found that when sexual orientation is at issue in a case, both bodies have held that States
must provide particularly convincing and “weighty reasons” for a difference in treatment.

In Karner v. Austria12, it was held that Human Rights had also rejected “the protection of
morals” as sufficient justification for discrimination in law or practice. Thus not considering
it as valid ground . likewise in , the court explicitly stated that the right to privacy can
sometimes embrace aspects of an individuals physical and social identity. 13

4.What is sexual orientation and gender identity? and their relationship

Gender identity refers to each person’s deeply felt internal and individual experience of
gender, which may or may not correspond with the sex assigned at birth. Gender identity
refers to an individual’s self-identification as a man, woman, transgender or other identified
category. Radhakrishnan .J., while14 dwelling upon the identity of transgenders opined that
gender identity is one of the most fundamental aspects of life which refers to a person‘s
intrinsic sense of being male, female or transgender or transsexual person15.

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

attraction to another person.

It is humbly submitted that Each person’s sexual orientation and gender identity are the
integral part in them and is the most important and basic aspect of determining dignity and
freedom.

The right to choose one’s gender identity is integral to the right to lead a

life with dignity, which is undoubtedly guaranteed by art. 21 of the

constitution of India. The dignity is special to every person who has a right to enjoy their life
as per the constitutional norms16.

When everything associated with homosexuality is treated as bent, queer, repugnant, the
whole gay and lesbian community is marked with deviance and perversity. They are subject
to extensive prejudice because what they are or what they are perceived to be, not because of
what they do. The result is that a significant group of the population is, because of its sexual
non- conformity, persecuted, marginalised and turned in on itself17.

5.Whether right guaranteed under art.21 was infringed ?

Article 21, states “No person shall be deprived of his life except according to the procedure
established by law.”
12
Application No. 40016/98
13
Pretty v. U.K, Application No. 2346/02
14
National Coalition for Gay and Lesbian Equality v. Minister of Justice, [1999] ZAC C 17
15
Supra (5)
16
Justice K.S. Puttaswamy v. Union of India, WP (Civil) No. 494/2012
17
National Coalition for Gay and Lesbian Equality v. The Minister of Justice, [1999] ZAC C 17

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Life defined in Art.21 is not merely the physical act of breathing .The SC in Maneka Gandhi
v. Union of India18ruled that expression of life does not mean mere animal existence but with
dignity.

The Court observed that the ‘right to personal liberty’ in the Indian Constitution is the right
of an individual to be free from restrictions or encroachments on his person, whether they are
directly imposed or indirectly brought about by calculated measures 16. It was further
discussed in Deepak Bajaj case19 that right to life encompassed a person’s reputation as well .

No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks20.

It is humbly submitted that In the case at hand, our focus is limited to dealing with the right
to privacy vis-à-vis Section 377 IPC and other facets such as right to choice as part of the
freedom of expression and sexual orientation. That apart, within the compartment of privacy,
individual autonomy has a significant space. Autonomy is individualistic. It is expressive of
self-determination and such self-determination includes sexual orientation and declaration of
sexual identity. Such an orientation or choice that reflects an individual‘s autonomy is innate
to him/her. It is an inalienable part of his/her identity. The individual has sovereignty over
his/her body.

5.1 WHETHER RIGHT TO PRIVACY WAS INFRINGED ?

Right to privacy is to be held as an inalienable fundamental right that protects individuals.

Article 21 were expansively interpreted so as to encompass one’s gender identity also.
Private, consensual sexual relations are protected under the right to liberty under Art.
21. under the privacy and dignity claim21.Privacy protects the autonomy of the individual and
the right to make choices. Every person is entitled to the intimacy and autonomy that privacy
protects22.

The right to privacy to be implicit in the right to life and liberty guaranteed to the citizens of
India by Article 21. “It is the right to be left alone. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child bearing and
education among many other matters.”23

The right to privacy has been accepted as implied in our Constitution, in other cases, namely,
People’s Union for Civil Liberties v. Union of India24and Sharda v. Dharampal25.

18
AIR 1978 SC 597
19
Deepak Bajaj v. State of Maharashtra, AIR 2009 SC 628
20
Article 12, Universal Declaration of Human Rights, 1948
21
Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972/2013
22
Supra (16)
23
R Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632
24
(1997) 1 SCC 301
25
(2003) 4 SCC 493

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5.2 RIGHT TO LIVE WITH HUMAN DIGNITY

Art. 21 guarantees the citizens of the country, the protection to a life with freedom and
dignity Life defined in Art.21 is not merely the physical act of breathing .

The SC in Maneka Gandhi v. Union of India 26 ruled that expression of life does not mean
mere animal existence but with dignity.

Sec.377 of the IPC criminalises a sexual act which is against the order of nature. Section 377
of the IPC, which is a pre-constitutional statute, should be interpreted in a manner which may
ensure protection and freedom of dignity of the individuals. It is submitted that the court
should also take cognizance of the changing values and temporal reasonableness of a statute.
Shri Desai emphasized that the attitude of the society is fast changing and the acts which
were treated as offence should no longer be made punitive27.

Sec.377 IPC by criminalizing the sexual acts has created an association of criminality
towards people with same sex desires. It is humbly submitted that the wordings of sec.377 of
the IPC is ambiguous and arbitrary. Any non-procreative sexual activity is thus viewed as
being “against the order of nature”.

It is humbly submitted that such legislation criminalising consensual sex is outdated and has
no place in the modern society. The continued existence of this provision on the statute book
creates and fosters a climate of fundamental rights violations of the gay community, to the
extent of bolstering their extreme social ostracism.

Art. 21 of the Constitution was given a wider interpretation in the case of A.K. Gopalan v.
Union of India28. and in the most recently decided case of Justice K. Puttaswamy v. Union of
India29.

As the passage of time, the Judiciary has been providing new and wider interpretations to the
Constitution. The main test of a progressive civilization is the change in laws during the
passage of time in accordance with the mandate of people. As an institution the Judiciary
should also take into consideration the general sentiment of the people.

5.3 WHETHER RIGHT TO LIVELIHOOD WAS INFRINGED?

Its is humbly submitted that the the case in our hand it is very much clear that working in the
office was the only source of livelihood for the petitioner. Right to livelihood being a persons
fundamental right was infringed. In the case of D.K. YADAV Vs. J.M.A. Industries30. The
SC held that the right to life enshrined under article 21 includes right to livelihood.

An equally important facet of life is the right to livelihood because no one can live without
the means of livelihood. If the right to livelihood is not treated as a part of the constitutional
26
Supra (18)
27
Supra (21)
28
AIR 1950 SC 27
29
Supra (16)
30
(1993) 3 SCC 258

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right to life, the easiest way of depriving a person of his right to life would be to deprive him
of his means of livelihood31.

Deprivation of livelihood would not only denude the life of its effective content and
meaningfulness but it would make life impossible to live.

Therefore it is requested to the Hon’ble court that, in the present case the petitioner has the
right to self-determine his gender and restriction on this right infringes Art.21 of the Indian
constitution.

A person has a right to identify his gender and to express his orientation towards others
which has been protected by the Constitution of India and any infringement on these are
violative of a person’s right to privacy, right to livelihood and right to live with dignity.

6.whether Sexual orientation and privacy lie at the core of Articles 14, 19 and 21 of the
Constitution?

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

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

"Equality demands that the sexual orientation of each individual in society must be protected
on an even platform. The right to privacy and the protection of sexual orientation lie at the
core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

In articles 14,15,16 ,19 and 21, the expression such as person', 'citizen' and 'sex' have been
stated, all these expressions, which are "gender neutral" evidently refer to human beings.
.Gender identity as already indicated forms the core of one's personal self, based on self-
identification, not on surgical or medical procedure. Gender identity is an integral part of sex
and no citizen can be discriminated on the ground of gender identity.

In the case of Navtej Singh Johar vs UOI 32:SC has held that the right of country's LGBT
people to express their sexuality without discrimination and it has also observed that a
person’s sexual orientation is a part of the person’s identity and protected under the
fundamental rights jurisprudence of the Indian Constitution,”

'The Chief Justice of India Dipak Misra and other justices held that a person’s sexual identity
was one of many natural phenomena’ and that ‘any discrimination on basis of sexual
orientation amounts to violation of fundamental rights.’ They added that ‘human sexuality
cannot be reduced to a binary formulation and decriminalizing Section 377 is but a first step.’
and sexual orientation essential attribute of privacy and must be protected.

31
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
32
(2018) 10 S.C.A.L.E 386

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 MEMORIAL FOR THE PETITIONER

In Puttaswamy's case33, the court held that held that privacy and protection of sexual
orientation lie at the core of the fundamental rights under Article 14, 15 and 21. The verdict
comes as a redemption for the LGBT community which has fought a long legal battle to
protect their privacy, sexual orientation and be protected from social stigma and legal action.

The SC further held that “discrimination against an individual on the basis of sexual
orientation is deeply offensive to the dignity and self-worth of the individual. Equality
demands that the sexual orientation of each individual in society must be protected on an
even platform.” Article 19(1)(a) includes one‘s right to expression of his/her self-identified
gender which can be expressed through words, action, behaviour or any other form. The law
should not be used in such a manner that it has a chilling effect on the freedom of speech and
expression.34

It held that Article 19 (1) (a) of the constitution states that all persons shall have the right to
freedom of speech and expression, which includes one’s right to expression of his self-
identified gender. The self-identified gender can be expressed through dress, words, action or
behaviour or any other form35.Over the last four decades, our constitutional jurisprudence has
recognised the inseparable relationship between protection of life and liberty with dignity.
Dignity as a constitutional value finds expression in the Preamble. The constitutional vision
seeks the realisation of justice (social, economic and political); liberty (of thought,
expression, belief, faith and worship); equality and fraternity (which assures a life of dignity
to every individual)36.

7.Whether the grounds of “sex” under Articles 15 & 16 includes discrimination on the
ground of gender identity?

Discrimination on sex under art 15 and 16 includes discrimination on gender identity, here in
article 15(2) is a specific application of the general prohibition contained in art 15(1).article
15(2)declares that no citizen shall be subjected to any disability, restriction or condition on
grounds only of religion, race, caste, sex, place of birth, or any of them with regard to access
to the public places. It is to be noted that while clause(1) of article 15 prohibits discrimination
by the state, clause (2) prohibits both the state and private the individuals from making any
discrimination.

It held that discrimination on the ground of “sex” under Article 15 and 16 also includes
discrimination on the ground of gender identity and the expression ‘sex’ used in Article 15
and 16 is not limited to biological sex but intended to include people who consider
themselves to be neither female nor male and transgender persons have been systematically
discriminated under Article 15.37

33
Supra (16)
34
Kushboo v. Kanniammal, (2010) 5 SCC 600
35
Dr. AkkaiPadmashali v. Union of India W.P (Civil) 572 of 2016
36
Joseph Shine v Union of India, AIR 2018 SC 4898
37
Supra (35)

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Section 377 is ultra vires Articles 14, 15, 19(1)(a) and 21 of the Constitution inasmuch as it
violates the dignity and personhood of the LGBT community. Sexual rights and sexuality are
a part of human rights and are guaranteed under Article 21. It is scientifically established that
consensual same sex conduct is not "against the order of nature". LGBT persons do not seek
any special rights. They merely seek their right to equality of not to be criminalized for being
who they are. Our Constitution does not deny any citizen the right to fully develop
relationships with other persons of the same gender by casting a shadow of criminality on
such sexual relationships.38

38
NimeshbhaiBharatbhai Desai v. State of Gujarat, 2018 (1) RCR(Criminal) 263

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PRAYER

Therefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court may be pleased to hold, adjudge, and declare that

1. The Writ Petition under Article 32 of the Constitution is maintainable

2. The fundamental rights guaranteed under Article 14 and 15 of the petitioner is
violated.
3. The fundamental rights guaranteed under Article 21 is abridged.
4. The petitioner must be able to secure employment in the same workplace.

The Court may make any other such order as it may deem fit in terms of justice, equitt and
good conscience.

And for this act of kindness the Petitioners shall as duty bound ever humbly pray.

Respectfully Submitted

Sd/-

Counsel(s) for the Petitioner

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