Team Code -

1ST SHRI NIRMALA DEVI BAM MEMORIAL NATIONAL MOOT

COURT COMPETITION, 2019

IN THE SUPREME COURT OF KADIA

WRIT PETITION____/2019

UNDER ARTICLE 32 OF THE CONSTITUTION OF KADIA

MR. ROCKY AND ORS ………………………………………PETITIONERS

VERSUS

TRISCO CORPORATION SOCIETY TRUST ……………......RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONERS

 STATEMENT OF JURISDICTION

The Honourable Supreme Court of Kadia has the jurisdiction in this matter under Article 32 of the
Constitution of India which reads as follows:

“32. Remedies for enforcement of rights conferred by 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 power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part.”

STATEMENT OF FACT

1. KADIA is a country full of religion-based customs and traditions, both

Homosexuality and Adultery are legal according to the Constitution of KADIA it also
guarantees its citizens fundamental rights such as Right to Privacy. TRISCO
CORPORATION SOCETY trust is a public trust based in KOBEE state under the
Government of KADIA which is registered under KADIA Trusts Act. Established in
1901, it was initially managed by a trustee appointed by Government but later a
committee was appointed in 1980 by the Government of KADIA , government
manages its funds and day to day activities. TRISCO trust also runs educational
institutions throughout the country while its objective being to protect and promote
the SODHEIM religion by making Temples for Public Worship
2. Mr. Rocky is a software engineer graduated from University of TUCKLAND in
2011, while his wife Ms. Ruby is an engineer from ZATHANKOT. After getting
married in 2016, they decided to get settled in SIGNORE in SARNATAKA,
working for an IT Company. Unfortunately, after only 2 years of their marriage, Mrs.
Ruby had a miscarriage. 3 years after this incident, Mrs. Ruby came to know about
her inability to give birth to a healthy child. In period of such difficulty, it was Mr.
Shresth who helped her. During this period, Mr. Rocky and his neighbour, Gopi
developed good relations with each other, as they used to share their personal
problems. After a long time, the couple decided to spend their special day of marriage
 anniversary by throwing a party to their close friends and colleagues, which included
Mr. Gopi, Mr. and Mrs. Shresth, but things didn’t go right as Ms. Ruby saw Mr.
Rocky and Mr. Gopi in compromising positions in Mr. Gopi’s bedroom. After seeing
the medical report of Mr. Rocky, Ms. Ruby became aware about the fact that her
husband cannot reproduce. Despite this, Ms. Ruby was interested in adopting a child,
but her husband refused for the same. After this, Ms. Ruby went to her maternal
house while Mr. Rocky went to TOCHIN for an important training programme.
During this time, Ms. Ruby wrote about the homosexuality of her husband on
Facebook, leading to people assuming that Mr. Rocky is a gay. After sometime, Mr.
Rocky got to know that her wife has a healthy child with Mr. Shresth, to which Mr.
Rocky did not object.

3. When Mr. Shresth confessed to her wife about her extramarital affair with Mrs Ruby
she filed for divorce in the SINGORE District Court under section 13(1) of the
SONDEIM MARRIAGE ACT which was supported by the landmark judgement of
NAVTEJ SINGH JOHAR AND ORS V. UNION OF INDIA .
4. Mr and Mrs. Rocky ,Mr.and Mrs.Shresh and Mr.Gopi all are a part of TRISCO
Trust which promotes radical Sondheimism
5. TRISCO trust though has an option to allow people with all beliefs to be a part of it
has a clause of exclusion and termination of those people who practice adultery or
homosexuality because its members are against it , they also oppose the landmark
judgements of NAVTEJ SINGH JOHAR AND ORS V. UNION OF INDIA and
JOSEPH SHINE VS UNION OF INDIA which they find violating their religious
principles which they officially stated on 1 Jan 2019 by saying that the people who
practice homosexuality or adultery have no right to practice SONDHEIM culture and
are ineligible to seek membership of TRISCO trust also they are not allowed to visit
any SONDHEIM temples in KADIA
6. After this incident the TRISCO Trust has cancelled the membership of Mr and Mrs
Rocky ,Mr Gopi and Mr. Shresth and put a lifetime ban on them for following any
SONDHEIM religion trust ,additionally they are being banned from entering any
temple or religious place made by TRISCO Trust
7. To challenge the decision of the trust, all the banned people which include Mr and
Mrs Rocky ,Mr Gopi and Mr. Shresth consulted TAPI NGO which suggested them
to file a writ petition in The Supreme Court contending that refusal of membership
 and lifetime ban on the basis of homosexuality and adultery is violative of their
fundamental rights which are Right to equality ,Right to life and Personal liberty and
Right to freedom of religion
8. In response of this the TRISCO trust took the help of Advocate GAKI of the
KOBEE State which opined that the Ban imposed was on reasonable terms and was
not aimed to harm any person or group and was for the protection of their cultural and
religious practice also TRISCO does not guarantee any constitutional or fundamental
right on adultery or homosexuality
9. Mr Rocky ,Mr Gopi and Mr. Shresth have decided to move to the Supreme Court of
KADIA for violation of their fundamental rights

ADVANCED ARGUMENTS

1. WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE

PRESENT CASE?

1. Article 321 provides right to move the Supreme Court , acting in a bona fide
manner, in case of violation of fundamental right, for the benefit of the society at
large. Thus in the present case, by virtue of power conferred under Article 32 of
the constitution Supreme Court has jurisdiction to entertain the present writ .

2. In present case “TRISCO has cancelled the membership of Mr. Rocky, Ms.
Ruby, Mr. Shresth and Mr. Gopi and rejected the membership of TRISCO trust
and put the life time ban on them to become member of SONDHEIM religion
trust and they are accordingly not allowed to enter in the religious place made by
1
32. Remedies for enforcement of rights conferred by this Part
 the trust because they were in practice of the homosexuality and adultery which
is against TRISCO members who are strong believers of the SONDHEIM
culture” And also the refusal of membership and lifetime ban by TRISCO
violates the fundamental right to equality, Right to life and personal liberty, and
right to freedom of religion. The Hon’ble Supreme Court of Kadia has the power
to entertain proceedings for the enforcement of fundamental rights. A challenge
under Article 32 extends not only to the validity of a law but also to an executive
order or action with or without the authority of law.

3. The Counsel humbly submits that in Romesh Thappar2 the Supreme Court ruled
that such a petition can come straight to the Supreme Court without going to the
High Court first. The Court stated that unlike Art. 226 and Art. 32 confer 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 Right. Art. 32 provides a guaranteed remedy for the enforcement of
the Fundamental Rights and constitutes the Supreme Court as the guarantor and
protector of Fundamental Rights. This proposition has been reiterated by the
Supreme Court in a number of cases.

4. The petitioner has the locus standi in the present case and all the requirements of
instituting Writ Petition have been fulfilled in the present case. The violation of
Fundamental Rights which are the basic structure of The Constitution also makes
this Court competent to decide the question.

5. In Ajay Hasia,3 The Supreme Court laid down the following tests to adjudge whether
a body is an instrumentality of the government or not:
a. If the entire share capital of the body is held by the government, it goes a
long way towards indicating that the body is an instrumentality of the
government.
b. Where the financial assistance given by the government is so large as to
meet almost entire expenditure of the body, it may indicate that the body is
impregnated with governmental character.
2
Romesh Thappar vs The State Of Madras 1950 AIR 124, 1950 SCR 594
3
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 : (1981) 1 SCC 722
 c. It is a relevant factor if the body enjoys monopoly status which is
conferred or protected by the state.
d. Existence of deep and pervasive state control may afford an indication that
the body is a state instrumentality.
e. If the functions performed by the body are of public importance and
closely related to governmental functions, it is a relevant factor to treat the
body as an instrumentality of the government.

In the present case, it is mentioned in the fact the TRISCO is a public trust and it confers
numerous reimbursements on upon the trustee for financial reimbursements. It is also
mentioned in the facts that TRISCO, established in 1901 gained huge popularity till 1980,
in such a way that Government had to appoint a committee to look after its day to day
running. Therefore, it was controlled in both financial and administrative manner, and
therefore, as per points (1),(2) and (3), therefore, TRISCO is an instrumentality of the
Government and hence, a state.

6. The judgment of a seven-judge Constitution Bench of the Supreme Court in Pradeep

Kumar Biswas4 where, after considering the authorities it concluded that the tests
formulated in Ajay Hasia5 were not a rigid set of principles so that if a body falls
within any of those tests, ex hypothesis, it must be considered to be a State within the
meaning of Article 12. The Court suggested a general guideline observing:

“The question in each case would be whether in the light of the cumulative facts as
established, the body is financially, functionally and administratively dominated by or
under the control of the Government. Such control must be particular to the body in
question and must be pervasive. If this is found then the body is a State within Article 12.
On the other hand, when the control is merely regulatory whether under statute or
otherwise, it would not serve to make the body a State.”

4
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : (2002) 4 JT 146. See
also Steel Authority of India Limited v. Madhusudan Das, (2008) 15 SCC 560. See also State of U.P. v. Radhey
Shyam Rai, (2009) 5 SCC 577 : (2009) 3 JT 393
5
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : AIR 1981 SC 487
 As per the facts, TRISCO is funded by the state, as it mentioned in point 18 that it confers
numerous reimbursements upon the trust. Further, a committee by Government is
constituted to look after the day-to-day running of the trust. Therefore, it is functionally
and administratively dominated by the State. Therefore, TRISCO trust is a state, and as
TRISCO is a state, it is bound to protect the Fundamental Rights of the citizens.

7. Another example of the expansive interpretation of the expression “other authorities”

in Art.12 is furnished by the recent decision of the Supreme Court in Pradeep Kumar
Biswas v. Indian Institute of Chemical Biology.6 In this case, the Supreme Court has
overruled Sabhajit Tewary and has held that the Council of Scientific and Industrial
Research (CSIR) is an authority under Art. 12 and was bound by Art. 14. The Court
has ruled that “the control of the Government in CSIR is ubiquitous”.
Part III of the Constitution which deals with “Fundamental rights” is regarded as the basic
structure of the Constitution.7

Therefore, in the present case, remedy under Article 32 is itself a fundamental right of the
petitioners.

Where there is a well-founded allegation that fundamental right has been infringed,
alternative remedy is no bar for entertaining writ petition and granting relief 8. The
mere existence of an adequate alternative remedy cannot be per se be a good and
sufficient ground for throwing out a petition under Art. 329. Thus, the petitioner
submits before the Hon’ble court that the writ petition is maintainable in the
present case.

ARTICLE 14

1. Unreasonable and arbitrary

2. No reasonable nexus and intelligible differentia

6
(2002) 5 SCC 111 : (2002) 4 JT 146
7
I.R Colho v. State of Tamil Nadu, (1998) 7 SCC 550
8
State of Bombay v. United Motors Ltd., AIR 1953 SC 252
9
K.K Konchinni v. State of Madras, AIR 1959 SC 725
 1. Unreasonable and arbitrary – It is humbly submitted that Art. 14 of the Constitution of
Kadia envisages equal protection or equal treatment in similar circumstances.10 Art.
14 is a basic structure.11 The requirement of the validity of a law with reference to Art.
14 is that it should not be arbitrary and classification should be reasonable.12
Therefore, TRISCO cannot make any classification which is unreasonable. But, in the
present case, TRISCO has done a classification based on homosexuality and adultery.
Homosexuality is no more unconstitutional as it was decided in the case of Navtej Singh
Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice. 13 And the
law on adultery has been proved unconstitutional in the case of Joseph Shine v. Union
of India14, and now, adultery is no more a criminal offence in Kadia. Further, TRISCO
is “state” as proved in the first issue, therefore it cannot make any classification
violating the fundamental rights of citizens. Therefore, the lifetime ban by the members
of TRISCO is based on a classification which is unreasonable and arbitrary and
violative of Article 14.
Equality is one of the magnificent corner stones of Indian democracy. 15 The underlying
object of Article 14 is to secure to all persons, citizens or non-citizens, the equality of
status and opportunity referred to in the Preamble to our Constitution. 16 According to
Article 7 of Universal Declaration of Human Rights (UDHR), All are equal before the
law and are entitiled without any discrimination to equal protection of the law. All are
entitled to equal protection against discrimination in violation of this Declaration and
against any incitement to such discrimination.17
In the present case, there is a violation of equality clause, as they have violated on the
basis of sexual orientation of individuals, which is not a reasonable classification as it
was held in the judgement of Navtej Singh Johar & Ors. v. Union of India Thr.

10
Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123.
11
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975
Supp. SCC 1.
12
Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411.
13
Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice,
14
Joseph Shine v. Union of India,
15
THOMMEN, J., in Indra Sawhney v. Union of India, AIR 1993 SC 477 : 1992 Supp (3) SCC
212.
16
Natural Resources Allocation, In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1
17
Article 7,UDHR, https://www.un.org/en/universal-declaration-human-rights/
 Secretary Ministry of Law and Justice18 that ‘sex’ in Article 15 includes sexual
orientation. 19
It may be noted that the right to equality has been declared by the Supreme Court as a
basic feature of the Constitution. The Constitution is wedded to the concept of equality.
The Preamble to the Constitution emphasizes upon the principle of equality as basic to
the Constitution. Neither Parliament nor state legislature can transgress the concept of
equality.20 Further, it was held in M.G. Baddapanavar v. State of Karnataka that “
Equality is a basic feature of the Constitution and any equals unequally or unequals as
equals will be violative of the basic structure of the Constitution. 21 Every action that is
arbitrary must involve negation of equality.22
Therefore, as they have violated the right to equality, by treating equals unequally,
because if someone is merely of a different sexual orientation, they cannot be
discriminated on the basis of fundamental rights.
There is no cut through strait jacket formula to evolve objectively, what amounts to
arbitrariness but can only be culled out from circumstances and facts.23
But, in the present case, it can be clearly inferred from that facts and circumstances that
there is an element of arbitrariness in the action of the trust.
2. No reasonable nexus and intelligible differentia.

Article 14 forbids class legislation but does not forbid reasonable classification. It is
submitted that in the case of State of Jammu and Kashmir v. Sh. Triloki Nath Khosa
and Ors.24, it was noted that intelligible differentia and rational nexus are the twin tests
of reasonable classification.
In order, however, to pass the test of permissible classification two conditions must be

18
Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice,
19
http://www.mondaq.com/india/x/737300/Human+Rights/Supreme+Court+Recognizes+Rights+Of+The+Lgbt
+Community
20
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225; Indra
Sawhney v. Union of India (II), AIR 2000 SC 498 : (2000) 1 SCC 168;

21
M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260, at 264 : (2001) 2 SCC 666.

22
Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors etc. : (1981)ILLJ103SC
23
Praveen Singh v. State Of Punjab, (2000) 8 SCC 633.
24
State of Jammu and Kashmir v. Sh. Triloki Nath Khosa and Ors., (1974) 1 SCC 19
 fulfilled, filled namely, (i) that the classification must be founded on an intelligible
differentia which distinguishes persons or things that are grouped together from others
left out of the group and, (ii) that that differentia must have a rational relation to the
object sought to be achieved by the statute in question.25
Article 14 as including the principles of reasonableness only requires the government to
act on reasonable grounds.26
In this case, there is a differentia between the persons who practice homosexuality and
adultery and other people, but there is no rational nexus, as TRISCO is refusing
membership to the people on a basis which is unconstitutional and being a state, it
should not classify them on a basis which violates their fundamental rights, as by
refusing them from entering into temples, they are violating their right to practice
religion( Art. 25).

ARTICLE 15

1. ‘Sex’ in Article 15 includes ‘sexual orientation’.

2. 15(1) violated.

1. ‘Sex’ in Article 15 includes ‘sexual orientation’

In the Naz foundation case27, it was clarified that the term ‘sex’ in Art. 15(1) cannot be
limited to a simplistic interpretation as applying only to gender. The purpose underlying this
fundamental right against sexual discrimination is to prevent behaviour that treats people
differently for reason of not being in conformity with general/stereotypical/normal gender
roles.28 It should also be noted that the Hon’ble SC in Suresh koushal’s case did not question
the High Court’s interpretation of Art. 1529.
Further, in the case of Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry
25
 Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors, [1959]1SCR279.
26
Durga Das Basu's Commentary on the Constitution of India, 1360 (Justice Y.V Chandrachud, Justice S.S
Subbramani, Justice B.P Banerjee, 8th Ed. 2008).
27
Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277.
28
Ibid.
29
Suresh Kumar Koushal and another v. NAZ Foundation, Civil Appeal No. 10972 (2013, Supreme Court of
India)
of Law and Justice, it was held that “Sex as it occurs in Article 15, is not merely restricted to
the biological attributes of an individual, but also includes their “sexual identity and
character”.
The J.S. Verma Committee30 had recommended that ‘sex’ under Article 15 must include
‘sexual orientation’:

“65. We must also recognize that our society has the need to recognize different sexual
orientations a human reality. In addition to homosexuality, bisexuality, and lesbianism, there
also exists the transgender community. In view of the lack of scientific understanding of the
different variations of orientation, even advanced societies have had to first declassify
‘homosexuality’ from being a mental disorder and now it is understood as a Report of the
Committee on Amendments to Criminal Law (2013) triangular development occasioned by
evolution, partial conditioning and neurological underpinnings owing to genetic reasons.
Further, we are clear that Article 15(c) of the constitution of India uses the word “sex” as
including sexual orientation.”

The prohibition against discrimination under Article 15 on the ground of ‘sex’ should
therefore encompass instances where such discrimination takes place on the basis of one’s
sexual orientation.

In the same case, the Supreme Court referred to Yogyakarta Principles. The 33 rd principles
which was referred to by the Supreme Court stated that “Everyone has the right to be free
from criminalisation and any form of sanction arising directly or indirectly from that person’s
actual or perceived sexual orientation, gender identity, gender expression or sex
characteristics.”31 These principles were referred to in various other cases in the previous
decisions.

In the international sphere, there are umpteen numbers of authorities which prohibits the
discrimination on the basis of sexual orientation. The ECHR in “Dudgeon v United
Kingdom”32 ruled against discrimination on sexual orientation.

30
Report of the Committee on Amendments to Criminal Law (2013)
31
Yogyakarta Principle 33
32
Dudgeon v. United Kingdom, (1981) 4 EHRR 149.
In a landmark decision decided by the UNHRC 33, it was claimed and ultimately upheld, that
rights under Art 26 which prohibited discrimination on the basis of sex 34 included within their
interpretative, scope prohibition of discrimination on the basis of sexual orientation.

HRC held that „sex‟ in art. 2 of the ICCPR includes sexual orientation. 35 The Canadian SC
also treated sexual orientation as ground analogous to that of sex listed in Section 15(1). 36
The SC of Nepal recently recognised equal rights of homosexuals.37

Therefore, it can be clearly inferred from the above judicial pronouncements that ‘sex’ in
Article 15 includes ‘sexual orientation’. Therefore, any discrimination on the grounds of sex
would mean discrimination on the grounds of ‘sexual orientation’. In the present case, by
discriminating on grounds of sexual orientation, they have discriminated on the grounds of
sex violating Article 15.

2. Article 15(1) violated.

Clause 1of Art 15 says that any act of the state shall not discriminate as between the citizens
on grounds only of religion, race, caste, sex, place of birth or any of them. The plain meaning
of the prohibition is that no person of a particular religion , race, caste etc be treated
unfavourably by the state when compared with the persons of other religion, race etc merely
because he belongs to a particular religion etc.38 If a person is sought to be discriminated
against simply because he belongs to a particular community, religion, race or sex, he can get
the State action annulled through a court.39 Art. 15 is particular application of the right of
equality, protecting the citizens against discrimination on certain grounds.40

It is humbly submitted that discrimination against the petitioner on basis of sexual orientation
is violative of Art.15 as it constitutes discrimination on the basis of sex because sexual
orientation cannot be defined without reference to sex. There is an inescapable link between
the two as discrimination on the basis of orientation is premised on “sex-based preferences,

33
Toonen v. Australia, (No.488/1992, CCPR/C/50/D/488/1992,31/03/1994).
34
International Covenant on Civil and Political Rights,1966.
35
Toonen v. Australia (No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994)
36
Vriend v. Alberta per Cory J. para 90[1998] 1 S.C.R. 493
37
Sunil Babu Pant &Ors. v. Nepal GovernmentWrit Petition No.917 of 2007 decided on 21stDecember, 2007),
38
D.D Basu, Introduction To Constitution of India,96( 21st edn 2012).
39
Ibid.
40
State of Sikkim v. S.P. Sharma, AIR 1994 SC 2342.
assumptions, expectations, stereotypes or norms”.41 It is so because consideration to sexual
orientation will require a person’s sex to be taken into account and will be based on gender
stereotypes.

The founding fathers while drafting the constitution knew that eventually there would arise a
strong need for an anti-discrimination law in the country. 42 This was the basis for the
inclusion of Art.15 (1) in the constitution. This article prohibits outright any form of
discrimination on sex.

Therefore, in the present case, TRISCO CORPORATION SOCIETY Trust has discriminated
on the basis of sexual orientation, hence on the basis of ‘sex’ in Article 15(1) as they have
discriminated on the basis of homosexuality, violating their fundamental right.

Further, it is mentioned in that fact that TRISCO acts in accordance with strategy of non-
discrimination, on grounds of religion, race, case, sex/sexual orientation, place of birth, age,
disability, descent and residence.

But, in the present case, by discriminating on account of sexual orientation, TRISCO has
acted against its own rules and strategies, violating the fundamental rights of the petitioners.

ARTICLE 19

1. 19(1)(a) violatied
2. 19(2)

1. 19(1)(a) violatied –

It was well-established in Navtej Singh Johar & Ors. v. Union of India Thr. Secretary
Ministry of Law and Justice43 that it is argued with astuteness that Section 377 has a
chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental
right of freedom of expression including that of LGBT persons to express their sexual

41
Christine Kehoe,American Psychological Ass'n, "Definition of Teims: Sex, Cjender, Gencter Identity, Sexual
Orientation" (Feb. 2011)
42
Samaraditya Pal, India’s Constitution, Origins and Evolution, 674, (Ed. 1, 2014).
43
Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice,
identity and orientation, through speech, choice of romantic/sexual partner, expression
of romantic/sexual desire, acknowledgment of relationships or any other means and that
Section 377 constitutes an unreasonable exception and is thereby not covered under
Article 19(2) of the Constitution. To buttress the said stance, reliance is placed upon the
decision in S. Khushboo v. Kanniammal and another4414 wherein it has been held that
law should not be used in such a manner that it has a chilling effect on the freedom of
speech and expression. Additionally, the view in NALSA45 case has also been strongly
pressed into service to emphasize that the said decision clearly spells out that the right
under 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.

Therefore, in the present case, TRISCO has discriminated on the basis of

homosexuality, violating the freedom of expression embodied in Article 19(1)(a) of the
Constitution of Kadia.

Further, it was held in Justice K.S. Puttaswamy(Retd.) & Anr. v. Union of India46, that
“These are crucial aspects of personhood. The freedoms under Article 19 can be
fulfilled where the individual is entitled to decide upon his or her preferences. Read in
conjunction with Article 21, liberty enables the individual to have a choice of
preferences on various facets of life including what and how one will eat, the way one
will dress, the faith one will espouse and a myriad other matters on which autonomy
and self-determination require a choice to be made within the privacy of the mind.”

Further, everyone has a right to choose a partner of one’s choice. 47 Therefore, by

restricting on adultery, TRISCO is violating Article 19 of the petitioners as they can
entitle upon their own preferences and it is a facet of Right to Privacy under Article 21.
Further, in Maneka Gandhi v. Union of India48, it was held that a law “depriving a person of
‘personal liberty’ has not only to stand the test” of Article 21, but it must stand the test of
Article 19 and Article 14 of the Constitution as well.

44
S. Khushboo v. Kanniammal and another, (2010) 5 SCC 600
45
National Legal Services Authority v Union of India and Others ,(2014) 5 SCC 438
46
Justice K.S. Puttaswamy(Retd.) & Anr. v. Union of India, (2017) 10 SCC 1
47
Shakti Vahini v. Union of India, (2018) 7 SCC 192 ; Shafin Jahan v. Ashokan K.M., (2018) SCC Online SC
343
48
Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621
Therefore, as there is violation of Article 21, it is implied as per the rule in Maneka Gandhi’s
case that there is violation of Article 14 as well.

2. Restrictions in 19(2) do not satisfy the circumstances in this case –

A look at the grounds contained in Art. 19(2) goes to show that they are all conceived in the
national interest or in the interest of the society. The first set of grounds, viz., the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States and
public order—are all grounds referable to national interest; whereas, the second set of
grounds, viz., decency, morality, contempt of Court, defamation and incitement to offence are
all conceived in the interest of the society.
Prima facie, this is not a case of national interest, contempt of court, defamation or incitement
to offence. ‘Morality’ here would mean constitutional morality, because as per the recent
Supreme Court Judgements, constitutional morality is always above social morality.
This statement of Dr. Ambedkar underscores that constitutional morality is not a natural forte
for our country for the simple reason that our country had attained freedom after a long
period of colonial rule and, therefore, constitutional morality at the time when the Constituent
Assembly was set up was an alien notion. However, the strengthening of constitutional
morality in contemporary India remains a duty of the organs of the State including the
Judiciary.49
In Ramesh Prabhoo50, 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 and propriety.
The court has cited with approval the following observation from an English case51:
“…… 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….”
Therefore, in the present case, no restriction in article 19(2) saves the restriction in 19(1)(a).

Therefore, Article 19 of the petitioners is violated.

49
Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice,
50
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113 : (1996) 1 SCC 130.
51
Knuller (Publishing, Printing and Promotions) Ltd. v. Director of Public Prosecutions, (1972) 2 All ER 898
 WHETHER REFUSING THE MEMBERSHIP AND LIFETIME BAN IS
IN VIOLATION OF RIGHT TO LIFE AND PERSONAL LIBERTY?

It is respectfully submitted that the refusal of membership and lifetime ban is in violation of
right to life and personal liberty. It is because [A] It is violative of right to individual dignity,
right to reputation, right to social security, right to choose a partner of one’s choice, freedom
of sexual orientation , right to privacy and right to health

[A] It is violative of right to individual dignity, right to reputation, right to social security,
right to choose a partner of one’s choice, freedom of sexual orientation and right to privacy.

1. The grounds of refusal of membership to Mr. Rocky and Mr. Gopi by Trisco
Corporation Society Trust was homosexuality and the grounds of refusal of
membership of Mr. Shresth was adultery.
2. Therefore, it is respectfully submitted that both these grounds are violative of various
facets of Article 21 of the Constitution of Kadia.
3. In the case of Kharak Singh v. State of Uttar Pradesh,52 the Supreme Court
quoted and held that:
By the term “life” as here used something more is meant than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by amputation of an
armored leg or the pulling out of an eye, or the destruction of any other organ of the body
through which the soul communicates with the outer world.
4. Counsel contends that one thing that can be clearly inferred from the above-
mentioned judgement is that a human being cannot be said to live a dignified life in
isolation from the society. Rather what brings dignity in his life is his interaction with
the other humans and various social institutions. As can be seen in the present case,
the petitioners were denied their membership by TRISCO which may be said as an
important social institution in their life. This is due to the fact that the petitioners were

52
1963 AIR 1295
 followers of SONDHEIM religion for which they were required to be a part of
respondent trust. Religion being an integral part of person’s life, provides him with a
social standing and if such identity is taken away from him then his fundamental right
to dignified living is surely at peril
5. To understand a person's dignity, one has to appreciate how the dignity of another is
to be perceived. Alexis de Tocqueville tells us:
6. “Whenever I find myself in the presence of another human being, of whatever station,
my dominant feeling is not so much to serve him or please him as not to offend his
dignity”53.Dignity is that component of one's being without which sustenance of
his/her being to the fullest or completest is inconceivable. The purpose of saying so is
that the identity of every individual attains the quality of an "individual being" only if
he/she has the dignity. Dignity while expressive of choice is averse to creation of any
dent. When biological expression, be it an orientation or optional expression of
choice, is faced with impediment, albeit through any imposition of law, the
individual's natural and constitutional right is dented. Such a situation urges the
conscience of the final constitutional arbiter to demolish the obstruction and remove
the impediment so as to allow the full blossoming of the natural and constitutional
rights of individuals. This is the essence of dignity and we say, without any inhibition,
that it is our constitutional duty to allow the individual to behave and conduct
himself/herself as he/she desires and allow him/her to express himself/herself, of
course, with the consent of the other. That is the right to choose without fear. It has to
be ingrained as a necessary pre-requisite that consent is the real fulcrum of any sexual
relationship54.
7. While discussing about the role of human dignity in gay rights adjudication and
legislation, Michele Finck55 observes:
8. As a concept devoid of a precise legal meaning, yet widely appealing at an intuitive
level, dignity-can be easily manipulated and transposed into a number of legal
contexts. With regard to the rights of lesbian and gay individuals, dignity captures
what Nussbaum described as the transition from "disgust" to "humanity." Once
looked at with disgust and considered unworthy of some rights, there is increasing

53
56, New York State Bar Journal (No 3. April, 1984), p.50
54
Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors.AIR2018SC4321
55
The role of human dignity in gay rights adjudication and legislation: A comparative perspective, Michele
Finck, International Journal of Constitutional Law, Volume 14, Jan 2016, page No. 26 to 53
 consensus that homosexuals should no longer be deprived of the benefits of
citizenship that are available to heterosexuals, Homosexuals are increasingly
considered as "full humans" disposing of equal rights, and dignity functions as the
vocabulary that translates such socio-cultural change into legal change.
9. In the case Indian Young Lawyers Association &Ors. V. The State of Kerala
&Ors.56Court held that :

Though, Article 21 speaks only of the deprivation of life or personal liberty by a

procedure established by law, decisions from Maneka Gandhi v Union of India57 , have
expounded that the law must have a content which is reasonable. The procedure for
deprivation must be free of the taint of that which is arbitrary. Thus the principle which
has become an entrenched part of our constitutional doctrine after the decision in Bank
Nationalization is based on a sure foundation. The freedoms which we possess and those
which we exercise are not disjunctive parts, separate from each other. Individuals in
society exercise not one but many of the freedoms. An individual exercise a multitude of
freedoms as a composite part of the human personality. A single act embodies within it
the exercise of many choices reflecting the assertion of manifold freedoms. From this
perspective, it is but a short step to hold that all freedoms exist in harmony. Our freedoms
are enveloped in the womb created by the Constitution for the survival of liberty

10. Counsel humbly submits that by applying the view of the court in the above case to
the present case, a parallel can be drawn. In the decided case women of a particular
sect were stopped from entering into a temple, similarly in the instant case a particular
group of people were rejected membership in the trust and thus in that particular
religion. In both the cases people were differentiated from the mass. In the instant
case the petitioners were differentiated on the basis of their sexual orientation which
was clearly out of the scope of respondent trust to decide.
11. Thus, counsel finally submits that in the instant case the respondent violates the right
to life and personal liberty guaranteed to the petitioners under article 21 of
constitution of Kadia. By infringing upon the personal liberty of the petitioners and
negating their right to dignified life the act of banning the petitioners from the trust
for life is ultra vires of the constitution of Kadia.

56
2018 (8) SCJ 609 SABRIMALA CASE
57
1978 AIR 597
 12. In Joseph Shine v. Union of India58, it was held by the Hon’ble Supreme Court of
India that “consensual sexual activity, be it within or outside of marriage, forms the
core of a person’s right to life and personal liberty as well as the right to privacy, and
must be protected from excessive State interference. Punishing the exercise of such
rights with imprisonment, as under Section 497 of the IPC, is an unreasonable
restriction on the exercise of such rights, and hence violative of the Constitution.
Much as Section 377 of the IPC deserves to be struck down as unconstitutional for
criminalizing the private sexual conduct of consenting adults, so too, does Section
497.”
13. Therefore, according to the above decision of Supreme Court, adultery is no more a
criminal offence, as it is violative of Consitution of Kadia, and homosexuality is
constitutional, therefore, the above grounds stated by the trust are unconstitutional as
it is violative of Article 21 of the Constitution of Kadia.
14. In K.S. Puttaswamy v. Union of India59, it was held by the Hon’ble Supreme Court
that “Privacy includes at its core the preservation of personal intimacies, the sanctity
of family life, marriage, procreation, the home and sexual orientation. The family,
marriage, procreation and sexual orientation are all integral to the dignity of the
individual.”
15. In the same judgement it was held that, “Discrimination against an individual on the
basis of sexual orientation is deeply offensive to the dignity and self-worth of the
individual. A person is entitled not only to decisional privacy i.e. the ability to not
only make decisions regarding his or her sexual nature, desires and preferences, but
also to a “zone of privacy”, where he or she is exempt from social stigma or judgment
in making such choices.”
16. In Shafin Jahan v. Asokan N.M60, it was held by Justice D.Y Chandrachud that “the
Constitution recognises the liberty and autonomy which inheres in each individual.
This includes the ability to take decisions on aspects which define one’s personhood
and identity. The choice of a partner whether within or outside marriage lies within
the exclusive domain of each individual. Intimacies of marriage lie within a core zone
58
Joseph Shine v. Union of India, 2018 SCCOnline SC 1676
59
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
60
Shafin Jahan v. Asokan N.M, (2018) SCC Online SC 343
 of privacy, which is inviolable. Neither the State nor the law can dictate a choice of
partners or limit the free ability of every person to decide on these matters. They form
the essence of personal liberty under the Constitution”.
17. Therefore, in the present case, the trust has discriminated on the basis of sexual
orientation, as it was the choice of Mr. Gopi, Mr. Rocky and Mr. Shresth, as to whom
they want to have sexual relations with, and discriminating them on the basis of this
factor is violative of various facets of article 21 of the Constitution like Right to
choose a partner of one’s choice, right to privacy , right to sexual orientation and right
to individual dignity.
18. In Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose61, it
was held that the right to social and economic justice is a fundamental right under
Artice 21. The learned judge mentioned in his view that “the right to life and dignity
of a person and status without means were cosmetic rights. Socio-economic rights
were, therefore, basic aspirations for meaning the right to life and that Right to Social
Security and Protection of Family were an integral part of the right to life.”
19. Therefore, the refusal of membership by Trisco Trust has caused social insecurity to
Mr. Rocky, Mr. Gopi and Mr. Shresth. Therefore, as per the above decision, it is
violative of Article 21 of the Consitution.
20. The Amrerican decision D.F. Marion v. Minnie Davis62 was referred by the Supreme
Court in Smt. Kiran Bedi v. Committee of Enquiry 63that “good reputation was an
element of personal security and was protected by the Constitution, equally with the
right to the enjoyment of life, liberty, and property.”

21. The same American Decision has also been referred to in the case of State of
64
Maharashtra v. Public Concern of Governance Trust , where the Court held that
good reputation was an element of personal security and was protected by the
constitution, equally with the right to the enjoyment of life, liberty, and property.
22. Therefore, as they have cancelled the membership of Mr. Rocky, Mr. Shresth and Mr.
Gopi on the grounds that are unconstitutional, they have violated their right to
reputation and hence, Article 21 of the Constitution.

61
Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441
62
D.F. Marion v. Minnie Davis, 55 American L.R. 171
63
Smt. Kiran Bedi v. Committee of Enquiry, (1989) AIR 714, 1989 SCR(1) 20
64
State of Maharashtra v. Public Concern of Governance Trust, (2007) 3 SCC 587
 23. In Francis Coralie v. Union Territory of Delhi65, it was held that “The right to live
includes the right to live with human dignity and all that goes along with it, viz., the
bare necessities of life such as adequate nutrition, clothing and shelter over the head
and facilities for reading writing and expressing oneself in diverse forms, freely
moving about and mixing and mingling with fellow human beings and must include
the right to basic necessities the basic necessities of life and also the right to carry on
functions and activities as constitute the bare minimum expression of human self.”
24. In case of Bandhu Mukti Morcha v. Union of India66, the court had interpreted the
dignity and health within the ambit of life and liberty under Art.21 of the Constitution
of India. Also Declaration of Human Rights, 1948 (“UDHR”). Article 25 of the
UDHR recognizes the right to health: "Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services." 69 Article 12 of the
International Covenant on Economic, Social and Cultural Rights (“ICESCR”)
recognizes the right of all persons to the enjoyment of the highest attainable standard
of physical and mental health: “The States Parties to the present Covenant recognize
the right of everyone to the enjoyment of the highest attainable standard of physical
and mental health.”
25. The right to health is not simply the right not to be unwell, but rather the right to be
well. It encompasses not just the absence of disease or infirmity, but “complete
physical, mental and social well being”, 196 and includes both freedoms such as the
right to control one’s health and body and to be free from interference (for instance,
from non-consensual medical treatment and experimentation), and entitlements such
as the right to a system of healthcare that gives everyone an equal opportunity to
enjoy the highest attainable level of health.Here the members being disqualified out of
the TRISCO trust and being not allowed to practice SONDHEIM religion has led
them to suffer mentally, it is causing them mental stress and tension which violates
their fundamental right to health which comes under the ambit of article 21 of the
Constitution Of India
26. Therefore, in the present case, the three petitioners are not able to express themselves
in diverse forms, and not mingle with fellow human beings, as they are discriminated

65
Francis Coralie v. Union Territory of Delhi, (1997) 5 SCC 10
66
Bandhu Mukti Morcha v. Union of India 1984AIR 802, 1984 SCR (2) 67
 and they are discriminated from the basic necessities of life, therefore it is violative of
Article 21 of the Constitution.

ARTICLE 25

25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise
and propagate religion.
As the Supreme Court has observed :67

“ ‘Religion is the belief which binds spiritual nature of men to super-natural being‘. It includes
worship, belief, faith, devotion, etc. and extends to rituals. Religious right is the right of a person
believing in a particular faith to practice it, preach it and profess it.”

Explaining the scope of Art.25 the Supreme Court has observed in Sri Lakshmana: 68

“Article 25 as its language amplifies, assures to every person subject to public order, health and
morality, freedom not only to entertain his religious beliefs, as may be approved of by his judgment
and conscience, but also to exhibit his belief in such outwardly act as he thinks Proper and to
propagate or disseminate his ideas for the edification of others.”

In present case TRISCO trust put the life time ban on them to become member of SONDHEIM
religion trust and they are accordingly not allowed to enter in the religious place made by the trust
which violates the fundamental right under Art. 25.

CONSTITUTIONAL MORALITY IS ABOVE PUBLIC OR SOCIAL MORALITY

Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental
Rights, which include the right of every individual, religious denomination, or sect, to
practise their faith and belief in accordance with the tenets of their religion, irrespective of
whether the practise is rational or logical.
67
P.M.A. Metropolitan v. Moran Mar Marthoma. AIR 1995 SC 2001 . 2026 : 1995 Supp (4) SCC 286.
68
.Sri Lakshmana Yatendrulu v. State of Andhra Pradesh, AIR 1996 SC 1414, 1421-1427 : (1996) 3 SCC 705.
The term 'morality' occurring in Article 25(1) of the Constitution cannot be viewed with a
narrow lens so as to confine the sphere of definition of morality to what an individual, a
section or religious sect may perceive the term to mean. Since the Constitution has been
adopted and given by the people of this country to themselves, the term public morality in
Article 25 has to be appositely understood as being synonymous with constitutional morality.

Constitutional morality embraces within its sphere several virtues, foremost of them being the
espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs
of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb
any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the
populace. Constitutional morality cannot be martyred at the altar of social morality and it is only
constitutional morality that can be allowed to permeate into the rule of law. The veil of social morality
cannot be used to violate fundamental rights of even a single individual, for the foundation of
constitutional morality rests upon the recognition of diversity that pervades the society

In Indian Young Lawyers Association & Ors v The State of Kerala & Ors69

Justice Indu Malhotra (Dissenting)- “India has diverse religious practices and constitutional
morality would allow anyone to profess and practise a religion she or he believes in and it is
not for the court to interfere in such religious practices, even it may appear discriminatory.
Issues of deep religious sentiments should not interfere into. What is essential practice in
religion is for the religion to decide. It is a matter of personal faith and India is a land of
diverse faiths. Constitutional morality in a pluralistic society gives freedom to practice even
irrational customs. Judges cannot intervene and decide on whether a practice is violative of
fundamental rights or not. Personal views of judges do not matter. A religious denomination
has freedom to believe and even practice even if their beliefs are illogical or irrational.”

In Krishna Singh v. Mathura Ahir,70 the Supreme Court has said that Fundamental Rights do not touch
upon the personal law of the parties. Art. 25 thus involves a separation between ‘religious’ activities,
on the one hand, and ‘secular’ and ‘social’ activities, on the other. While the former are protected the
latter are not.

69
I.A. NO. 10 OF 2016 IN WRIT PETITION (CIVIL) NO. 373 OF 2006
70
AIR 1980 sc 707 (1981) 3 scc 689.