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,1 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
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

1
1963 AIR 1295
 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”2.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
relationship3.
7. While discussing about the role of human dignity in gay rights adjudication and
legislation, Michele Finck4 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
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.5Court 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 India6 , 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
2
56, New York State Bar Journal (No 3. April, 1984), p.50
3
Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors.AIR2018SC4321
4
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
5
2018 (8) SCJ 609 SABRIMALA CASE
6
1978 AIR 597
 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.

12. In Joseph Shine v. Union of India7, 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 India8, 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,

7
Joseph Shine v. Union of India, 2018 SCCOnline SC 1676
8
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
 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.M9, 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
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 Bose10, 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.

9
Shafin Jahan v. Asokan N.M, (2018) SCC Online SC 343
10
Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441
 20. The Amrerican decision D.F. Marion v. Minnie Davis11 was referred by the Supreme
12
Court in Smt. Kiran Bedi v. Committee of Enquiry 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.”

21. The same American Decision has also been referred to in the case of State of
13
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.

23. In Francis Coralie v. Union Territory of Delhi 14, 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 Bandhua Mukti Morcha v. Union of India15, the court had interpreted the
dignity and health within the ambit of life and liberty under Article 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.”

11
D.F. Marion v. Minnie Davis, 55 American L.R. 171
12
Smt. Kiran Bedi v. Committee of Enquiry, (1989) AIR 714, 1989 SCR(1) 20
13
State of Maharashtra v. Public Concern of Governance Trust, (2007) 3 SCC 587
14
Francis Coralie v. Union Territory of Delhi, (1997) 5 SCC 10
15
Bandhua Mukti Morcha v. Union of India1984 AIR 802, 1984 SCR (2) 67
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
and they are discriminated from the basic necessities of life, therefore it is violative of
Article 21 of the Constitution.