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 RESPONDENT

TABLE OF CONTENTS
LIST OF ABBREVIATIONS..........................................................................................................................iii

INDEX OF AUTHORITIES............................................................................................................................vi
STATEMENT OF FACTS...............................................................................................................................xi

ISSUES FOR CONSIDERATION.................................................................................................................xiii

SUMMARY OF ARGUMENTS....................................................................................................................xiv

ADVANCED ARGUMENTS...........................................................................................................................1

I. WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT CASE IN THE

SUPREME COURT OF KADIA?.................................................................................................................1

A. There is no violation of fundamental rights........................................................................................1

B. Existence of an alternate remedy........................................................................................................2

C. TRISCO is not a state..........................................................................................................................2

II. WHETHER THE ACTIONS OF THE TRISCO TRUST HAVE VIOLATED ARTICLE 14 AND 15
OF THE CONSTITUTION OF KADIA?......................................................................................................4

A. The classification made is reasonable and non-arbitrary....................................................................4

B. An intelligible differentia and rational nexus are present...................................................................5

C. TRISCO is not a state..........................................................................................................................5

D. The term ‘sex’ as used in article 15 (1) cannot be interpreted so as to include “sexual orientation”. 5

E. Article 15(1) is not violated................................................................................................................7

III. WHETHER REFUSING THE MEMBERSHIP AND LIFETIME BAN IS IN VIOLATION OF

ARTICLE 19 AND 21 OF THE CONSTITUTION OF KADIA?................................................................8

A. There is no violation of Article 19 as the acts of TRISCO are saved by the exceptions in Article
19(2) of the Constitution of Kadia..............................................................................................................8

B. There is no violation of Article 21 of the Constitution of Kadia........................................................9

C. Homosexuality is a high risk activity for the society........................................................................10

D. Adultery affects morality of the society............................................................................................11

IV. WHETHER THE ACTS OF TRISCO ARE VIOLATIVE OF ARTICLE 25 OF THE

CONSTITUTION OF KADIA?...................................................................................................................13

A. Rights under art. 25 aren’t an absolute right.....................................................................................13

B. The right to religion is subject to fundamental rights of others........................................................14

C. Article 26 gives the Freedom to manage religious affairs................................................................14

i
PRAYER FOR RELIEF..................................................................................................................................16

LIST OF ABBREVIATIONS

S.NO. TABLE OF EXPANSION

ABBREVIATION

ii
1. ¶ Paragraph

2. AIR All India Report

3. ANR. Another

4. ART. Article

5. AIDS Acquired Immune

Deficiency Syndrome
6. CO. Company

7. CRPC The Code Of Criminal

Procedure
8. CSIR Council Of Scientific And
Industrial Research
9. CBI Central Bureau Of
Investigation
10. ED Edition

11. ER England Law Reports

12. HON’BLE Honourable

13. HIV Human Immunodeficiency

Virus
14. IPC Indian Penal Code

15. JT Judgment Today

16. LTD. Limited

17. MR Mister

18. MRS Missus

19. NGO Non-Governmental

Organization
20. ORS Others

21. ORG. Organization

iii
22. P.G. Page Number

23. RETD Retired

24. S.C. Supreme Court

25. S.C.C. Supreme Court Cases

26. S.C.J Supreme Court Journal

27. S.C.R. Supreme Court Reporter

28. SEC. Section

29. SUPL Supplementary

30. THR Through

31. U.P. Uttar Pradesh

32. UOI Union Of India

33. UDHR United Declaration Of

Human Rights
34. W.P. Writ Petition

35. V. Versus

iv
 INDEX OF AUTHORITIES

Cases

1. A.K. Gopalan v. State of Madras ,1950 SCR 88................................................................................20

2. Acharya Mahajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1975 SC
2098: (1975) 1 SCC 11.................................................................................................................21, 22
3. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 : (1981) 1 SCC 722................................................12
4. Ali Akbar v. Dt. Musiff Pudukkotiar, AIR 1993 Mad 51..................................................................22
5. Andhra Industrial Works v. Chief Controller of Imports and Ors AIR 1974 SC 1539.....................10
6. Avinash Chand Gupta v. State of Uttar Pradesh, (2004). 2 SCC 726................................................11
7. BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333........................................10
8. Bandhua Mukti Morcha vs Union Of India & Others........................................................................10
9. Church of God (full Gospel) in India v. K.K.R Majestic Colony Welfare Association, (2000) 7 SCC
282: AIR 2000 SC 2773.....................................................................................................................22
10. D. Velusamy v. D. Patchaiammal, Criminal Appeal No. 2028-2029, (Supreme Court, 15/05/2010).
............................................................................................................................................................15
11. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457................................................................11
12. Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101...................................18
13. Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113 : (1996) 1 SCC
130......................................................................................................................................................17
14. Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872.........................................................18
15. Fazal Rab Choudhary v. State of Bihar ,AIR 1983 SC 323, 1983 CriLJ 632, 1982 (1) SCALE 803,
(1982) 3 SCC 9...................................................................................................................................20
16. Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546..................10
17. In The Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. [1962] 1 SCR 383..............23
18. Indra Sawhney v. Union of India, AIR 1993 SC 477 : 1992 Supp (3) SCC......................................13
19. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225..............................................................13
20. Knuller (Publishing, Printing and Promotions) Ltd. v. Director of Public Prosecutions, (1972) 2 All
ER 898................................................................................................................................................17
21. LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811............................................18
22. M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160.................................................18

v
23. Madan Mohan Singh & Ors v. Rajni Kant & Anr.,Civil Appeal No. 6466, (Supreme Court,
14/03/2016)........................................................................................................................................15
24. Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, AIR 1993 SC 935...........................18
25. Maneka Gandhi v. Union of India ,(1978) 1 SCC 248......................................................................20
26. Maneka Gandhi v. Union of India, (1978) 1 SCC 248......................................................................10
27. Maneka Gandhi v. Union of India.AIR 1978 SC597.........................................................................18
28. Mr. ‘X’ v Hospital ‘Z’, AIR 1995 SC 495.........................................................................................18
29. Natural Resources Allocation, In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1...............13
30. Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277..............................................14
31. Netai Bag v. State of West Bengal, AIR 2000 SC 3313....................................................................18
32. Om Kumar v. Union of India, AIR 2000 SC 3689............................................................................18
33. P.N. Kumar and Anr. v. Municipal Corporation of Delhi, 1987 SCC (4) 609.................................11
34. People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568..........................................18
35. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : (2002) 4 JT
146......................................................................................................................................................12
36. R.C. Cooper v. Union of India ,(1970) 1 SCC 248............................................................................20
37. Ram Jethmalani & Ors. v. Union of India & Ors., (2011) 8 SCC 1..................................................18
38. S. Khushboo v. Kanniammal & Anr., Criminal appeal No. 913, (Supreme Court, 18/03/2016)......15
39. Sabhajit Tewari v. Union of India, AIR 1975 SC 1329 : (1975) 1 SCC 485.....................................11
40. Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583.....................................11
41. Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors, [1959]1SCR279........................14
42. Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1............................................................13
43. Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411......................................................................13
44. Sri' Venkataramana Devaru v. State of Mysore,[1958] SCR 895......................................................23
45. State of Jammu and Kashmir v. Sh. Triloki Nath Khosa and Ors., (1974) 1 SCC 19.......................14
46. Suresh Kumar Koushal vs Naz Foundation, (2014) 1 SCC 1............................................................20
47. Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123.................................................13
48. Union of India and another v. Deoki Nandan Aggarwal, 24(2004) 5 SCC 518 251992 Supp. (1)
SCC 323 44........................................................................................................................................15
49. Union of India v. International Trading Co., (2003) 5 SCC 437 : AIR 2003 SC 3983.....................13
50. Union of India v. Paul Manickam, AIR 2003 SC 4622.....................................................................11

Constitutional Provisions

vi
 1. Article 14, Constitution of India........................................................................................................14
2. Article 15(1), Constitution of India....................................................................................................16
3. Article 21 of the Constitution of India – Protection of life and Personal Liberty – No person shall be
deprived of his life or personal liberty except according to procedure established by law...............18
4. Article 226, Constitution of India......................................................................................................11
5. Article 25(1), Constitution of India....................................................................................................22
6. Article 32, Constitution of India........................................................................................................10
7. Part IV, Constitution of India.............................................................................................................22

Books

1. Durga Das Basu, Shorter Constitution of India, 396 (13th ed., 2001)...............................................11
2. Durga Das Basu's Commentary on the Constitution of India( 8th Ed. 2008)...................................10
3. Durga Das Basu's Commentary on the Constitution of India, 3481 (Justice Y.V Chandrachud,
Justice S.S Subbramani, Justice B.P Banerjee, 8th Ed. 2008)...........................................................22
4. Ram Ahuja, Society in India, 114, (1st Ed.1999)..............................................................................15
5. See Professor M.P Jain, Indian Constitutional Law, 349 (Samaraditya Pal, Justice Ruma Pal, 6th
Ed., 2013)...........................................................................................................................................22

Other Authorities

1. Article 9(2), European Convention on Human Rights, 1953...............................................................17

2. George A. Rekers, Review of Research on Homosexual Parenting, Adoption, And Foster Parenting,
available at
http://www.catholiceducation.org/articles/homosexuality/ResearchReviewHomosexualParenting.pdf,
last seen on 20/03/2019........................................................................................................................17
3. Gordon Neal Diem, The Definition of "Family" in a Free Society published by the Libertarian
Nation Foundation , available at http://libertariannation.org/a/f43d1.html , last seen on 17/03/2019.
..............................................................................................................................................................16
4. Hrodrigues, SEXUALITY IN HINDUISM, http://www.mahavidya.ca/2016/04/26/sexuality-in-
hinduism/..............................................................................................................................................14
5. http://naco.gov.in/sites/default/files/HIV%20SENTINEL%20SURVEILLANCE_06_12_2017_0.pdf
..............................................................................................................................................................17
6. http://www.encyclopedia.com/doc/1O88-marriage.html.....................................................................16

vii
7. http://www.heritage.org/research/lecture/why-strong-social-institutions-are-needed, last seen on
17/03/2019...........................................................................................................................................16
8. https://www.cdc.gov/std/stats17/2017-STD-Surveillance-Report_CDC-clearance-9.10.18.pdf........17
9. Jayaram V, HINDUISM AND HOMOSEXUALITY,
https://www.hinduwebsite.com/hinduism/h_homosex.asp..................................................................14
10. Kuljit Kaur, Legal Education and Social Transformation, The Study Material for the Course of Law
and Social Change, at WBNUJS, (Compiled by Prof. M. K. Sinha for LL. M. First Semester, 2010-
11)........................................................................................................................................................17
11. Larrry Houston, Homosexual Parenting Myth, Chapter 11, 26/03/2007, available at
http://banap.net/spip.php?article82, last seen on 25/03/2019..............................................................17
12. Law in a Changing Society'by W Friedmann Columbia University Press (1 April 1972)..................19
13. Rhoda E. Howard, Gay rights and right to a family, 23 Human Rights Quarterly, 2001....................16

Rules

1. Article 7,UDHR...................................................................................................................................14

Regulations

1. Article 18(2), International Covenant on Civil and Political Rights, 1966.........................................23

2. Article 18,Universal Declaration of Human Rights, 1948...................................................................23
3. Article 9(2), European Convention for protection of Human Rights..................................................23

viii
 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.”

ix
 STATEMENT OF FACTS

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 .

x
4. Mr and Mrs. Rocky ,Mr.and Mrs.Shresth 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.

xi
xii
 ISSUES FOR CONSIDERATION

The following issues have arisen for consideration before the Hon’ble High Court of KADIA:

I. WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT

CASE IN THE SUPREME COURT OF KADIA?

II. WHETHER THE ACTS OF THE TRISCO TRUST HAVE VIOLATED ARTICLE
14 AND 15 OF THE CONSTITUTION OF KADIA?

III. WHETHER REFUSING THE MEMBERSHIP AND LIFETIME BAN IS IN

VIOLATION OF ARTICLE 19 AND 21 OF THE CONSTITUTION OF KADIA?

IV. WHETHER THE ACTS OF TRISCO ARE VIOLATIVE OF ARTICLE 25 OF

THE CONSTITUTION OF KADIA?

xiii
 SUMMARY OF ARGUMENTS

I. WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT

CASE IN THE SUPREME COURT OF KADIA?

It is humbly submitted that the writ petition is not maintainable as Writ Petition can be filed under
Article 32 for enforcement of Fundamental Rights, as guaranteed by part III of the Constitution but in
the instant case, firstly, The TRISCO Trust is not a State under Article 12 of the Constitution of Kadia as
numerous reimbursements cannot be equated to entire expenditure and day to day running is different from
deep and pervasive state control, Secondly There is no direct violation of fundamental rights and Thirdly
The Petitioner should have used the alternate remedy and approached the High court under Article 226 as it
has a wider ambit.

II. WHETHER THE ACTS OF THE TRISCO TRUST HAVE VIOLATED ARTICLE
14 AND 15 OF THE CONSTITUTION OF KADIA?

Article 14 of The Constitution of Kadia provides that the State shall not deny to any person equality
before the law or equal protection of law within the territory of Kadia. The actions of the state must be
Reasonable and non-arbitrary, and Intelligible differentia and rational nexus must be present. In the
present case both the conditions are satisfied as it is reasonable and non - arbitrary to ban people whose
actions are against the beliefs and tenets of SONDHEIM culture and Intelligible differentia and rational
nexus are present as firstly, homosexuality and adultery are against the religious beliefs of SONDHEIM
religion and secondly, adultery punishes the man who has sex with the wife of other man, but as per the
religious beliefs of SONDHEIM religion, both man and woman are punishable for adultery and hence,
without discriminating on the basis of sex, While article 15 talks about Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth ,in the present case the word ‘sex’ cannot be
interpreted as Sexual orientation as it will gravely affect the institution of Family and Marriage in Kadia
and may lead to widespread health issues also the amendment by the legislature will be necessary to
interpret ‘sex’ as ‘sexual orientation’.

xiv
III. WHETHER REFUSING THE MEMBERSHIP AND LIFETIME BAN IS IN
VIOLATION OF ARTICLE 19 AND 21 OF THE CONSTITUTION OF KADIA?
Article 19(1) of The Constitution Of Kadia speaks about right to freedom of speech and expression but
Article 19(2) has laid down certain reasonable restrictions such as public order, decency or morality and
in the present case it can be proven that morality here can be interpreted as not constitutional but public
morality also and the actions of homosexuality and adultery are socially incorrect, while Article 21 talks
about Protection of life and personal liberty. To establish of the violation Article 21, the act should be
subjected to the equality test of Article 14 and test of reasonableness under Article 19 and it is proved
earlier that both these Articles are not violated also Homosexuality increases the risk of HIV /AIDS in
the society.

IV. WHETHER THE ACTS OF TRISCO ARE VIOLATIVE OF ARTICLE 25 OF

THE CONSTITUTION OF KADIA?

It us humbly submitted that the acts of TRISCO trust is not in violation of article 25 which provides
Freedom of conscience and right to freely practice any religion as firstly ,rights under article 25 aren’t
absolute and subjected to public morality and decency and the act of Homosexuality and adultery are
against social morality and decency. Secondly Enjoyment of one's right must be consistent with the
enjoyment of rights also by others and Thirdly Article 26 gives all the freedom to the Religious
denomination to manage their religious affairs and form rules and regulations as per their choice.

xv
 ADVANCED ARGUMENTS

I. WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT

CASE IN THE SUPREME COURT OF KADIA?
The writ petition in the present case is not maintainable because [A] There is no violation of
fundamental rights, [B] An alternate remedy is available to the petitioners and [C] TRISCO is not a
state and therefore, can make reasonable restrictions as per their religious beliefs.

A. There is no violation of fundamental rights.

1. It is humbly submitted that a Writ Petition can be filed under Article 321 for enforcement of
Fundamental Rights, as guaranteed by part III of the Constitution.2 In the instant case, firstly,
there has been no violation of any fundamental rights and secondly, the petitioner has failed to
exhaust his alternative remedy.

2. The jurisdiction under Art. 32 can be invoked only when Fundamental Rights are violated 3. In

the instant case, that there has been no direct and inevitable effect on the fundamental rights 4.

It is submitted that in the second part of the submission it will be shown that there is no

violation of fundamental right under Article 14 ,Article 15,Article 19,Article 21 and Article 25

of the Kadia constitution.

3. In the case of Bandhua Mukti Morcha v. Union Of India & Others5, supreme court explained

the scope of article 32. Clause (1) of Article 32 confers the right to move the Supreme Court

for enforcement of any of the fundamental rights, but it does not say as to who shall have this

right to move the Supreme Court nor does it say by what proceedings the Supreme Court may

1
Article 32, Constitution of India.
2
Andhra Industrial Works v. Chief Controller of Imports and Ors AIR 1974 SC 1539; Guruvayur Devaswom Managing
Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ; BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC
333.
3
Durga Das Basu's Commentary on the Constitution of India, 3705 (Justice Y.V Chandrachud, Justice S.S Subbramani, Justice
B.P Banerjee, 8th Ed. 2008).
4
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
5
Bandhua Mukti Morcha v. Union Of India & Others, (1997) 10 SCC 549.
 be so moved.

4. Therefore, as in the present case, there is no violation of fundamental rights, the writ petition

under Article 32 is not maintainable in this Hon’ble Court.

B. Existence of an alternate remedy.

1. It has been held that Art. 32 confers ‘extra- ordinary jurisdiction’, the same must be used

sparingly and in circumstances where no alternative remedy is available 6. Art. 32(1) confers a

right to move the SC by ‘appropriate proceedings’. Appropriate proceedings include

procedural factors such as res judicata 7, delay in filing the petition and parallel proceedings 8 in

another court. The petitioner in the instant case had the alternate remedy to approach the

Hon’ble HC9.

2. In P.N. Kumar and Anr. v. Municipal Corporation of Delhi10, the writ petition of petitioners

was dismissed by the apex court and the petitioner was asked to file the same writ jurisdiction

in the respective High Court because the High Court has a wider ambit in Article 226.

3. It is submitted that the petitioner had an alternative remedy to approach the High court under

Art. 226. The power of High Court under Art. 226 is wider than the powers of this Court

under Art. 32 of the Constitution. Considering the points raised, it is submitted that the petition

is not maintainable.

C. TRISCO is not a state.

1. In Sabhajit Tewari v. Union of India11, the Supreme Court ruled that the Indian Council of

Scientific Research, a body registered under the Societies Registration Act (thus a non-

statutory body), but under a good deal of governmental control and funding, was not a ‘state’.
6
Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of Uttar Pradesh,
(2004). 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622.
7
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457.
8
Durga Das Basu, Shorter Constitution of India, 396 (13th ed., 2001).
9
Article 226, Constitution of India.
10
P.N. Kumar and Anr. v. Municipal Corporation of Delhi, 1987 SCC (4) 609
11
Sabhajit Tewari v. Union of India, AIR 1975 SC 1329 : (1975) 1 SCC 485.
2
 2. In Ajay Hasia,12 The Supreme Court laid down the following tests to adjudge whether a body is an
instrumentality of the government or not:
(1) 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.

(2) 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.

(3) It is a relevant factor if the body enjoys monopoly status which is conferred or protected by the state.

(4) Existence of deep and pervasive state control may afford an indication that the body is a state
instrumentality.

(5) 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.

3. In the present case, entire capital is not funded by Government as it is mentioned in the facts that the
Government confers numerous reimbursements upon the trust for financial assistance. Numerous
reimbursements cannot be interpreted to be such as to meet almost entire expenditure of the trust. In
the present cases, there might be many more trusts like TRISCO, which are based on religious
denominations. Further, Government has merely constituted a committee to look after the day-to-day
running of the trust, but deep and pervasive state control are far wide terms. Further, the functions
performed by the trust are not related to Government functions.
4. Another example of the expansive interpretation of the expression “other authorities” in Art. 12 is
furnished by the decision of the Supreme Court in Pradeep Kumar Biswas v. Indian Institute of
Chemical Biology.13 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.”

5. In the present case, TRISCO is not functionally dominated by the Government, therefore, according
to this decision of the Hon’ble Supreme Court, TRISCO is not a state under Article 12, and
therefore, it can make reasonable restrictions based on its religious beliefs.
12
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 : (1981) 1 SCC 722.
13
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : (2002) 4 JT 146.
3
 II. WHETHER THE ACTIONS OF THE TRISCO TRUST HAVE VIOLATED
ARTICLE 14 AND 15 OF THE CONSTITUTION OF KADIA?
There is no violation of Article 14 of the petitioners in the present case as [A] The classification
made is reasonable and non-arbitrary, [B] An intelligible differentia and rational nexus are present
and [C] TRISCO is not a state.

A. The classification made is reasonable and non-arbitrary.

1. It is humbly submitted that Art. 14 of the Constitution of Kadia envisages equal protection or equal
treatment in similar circumstances.14 Art. 14 is a basic structure.15 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.16
2. Equality is one of the magnificent corner stones of Indian democracy.17 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. 18 According to Article 7 of Universal Declaration of
Human Rights(UDHR), All are equal before the law and are entitled 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.19
3. A basic and obvious test to be applied in cases where administrative action is attacked as arbitrary is
to see whether there is any discernible principle emerging from the impugned action and if so, does
it really satisfy the test of reasonableness.20
4. In the present case, the action of TRISCO is reasonable and non-arbitrary as it is not a state and a
trust based on SONDHEIM religion, so it may classify its members as per the beliefs of the religion
and if any act is against the basic tents of their religious beliefs, then classifying its members on that
basis would be a reasonable classification and would not violate Article 14.
5. The Dharma Sastras’ view of homosexuality is one of taboo; a man who engages in same sex
activity is to be punished, however slightly, for the transgression.21
6. According to Yajnavalkya Smriti, “Participating in sexual intercourse for the purpose of procreation
is an obligatory duty. It becomes evil only when it is used for personal and selfish enjoyment.”22

14
Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123.
15
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1.
16
Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411.
17
THOMMEN, J., in Indra Sawhney v. Union of India, AIR 1993 SC 477 : 1992 Supp (3) SCC
212.
18
Natural Resources Allocation, In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1
19
Article 7,UDHR, https://www.un.org/en/universal-declaration-human-rights/
20
Union of India v. International Trading Co., (2003) 5 SCC 437 : AIR 2003 SC 3983.
21
Hrodrigues, SEXUALITY IN HINDUISM, http://www.mahavidya.ca/2016/04/26/sexuality-in-hinduism/
22
Jayaram V, HINDUISM AND HOMOSEXUALITY, https://www.hinduwebsite.com/hinduism/h_homosex.asp
4
 7. Therefore, adultery and homosexuality are against the beliefs of SONDHEIM religion, therefore, the
classification is reasonable.

D. An intelligible differentia and rational nexus are present.

1. 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.23, it was noted that
intelligible differentia and rational nexus are the twin tests of reasonable classification.
2. In order, however, to pass the test of permissible classification two conditions must be 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.24
3. But, in the present case, the classification is based on an intelligible differentia and has a rational
nexus too, because firstly, homosexuality and adultery are against the religious beliefs of
SONDHEIM religion and secondly, adultery as defined in IPC, punishes the man who has sex with
the wife of other man, but as per the religious beliefs of SONDHEIM religion, both man and woman
are punishable for adultery and hence, without discriminating on the basis of sex, TRISCO has acted
reasonably and has refused the membership of both, Mr. Shresth and Mrs. Ruby.

E. TRISCO is not a state.

1. According to Article 14 of the Constitution of Kadia,
“The State shall not deny to any person equality before the law or equal protection of the laws within
the territory of India.”25
2. But, in the present case, as proved in the 1st issue, TRISCO is not a ‘state’, therefore, Article 14 does
not apply to TRISCO.

There is no violation of Article 15 of the Constitution as [D] The term ‘sex’ as used in article 15 (1)
cannot be interpreted so as to include “sexual orientation” and [E] Article 15(1) is not violated.

F. The term ‘sex’ as used in article 15 (1) cannot be interpreted so as to include “sexual
orientation”.
1. Foreign judgements will only serve to introduce foreign cultural norms into Kadia where they will be
23
State of Jammu and Kashmir v. Sh. Triloki Nath Khosa and Ors., (1974) 1 SCC 19
24
 Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors, [1959]1SCR279.
25
Article 14, Constitution of India.
5
 at odds with the deeply rooted customs, traditions, and norms of Kadian society.26
2. Further, the respondent contends that Section 377 IPC is not violative of Article 15 of the
Constitution as the said Article prohibits discrimination on the grounds of only religion, race, caste,
42 sex, place of birth or any of them but not sexual orientation. The word ‘sexual orientation’, as per
the applicant, is alien to our Constitution and the same cannot be imported within it for testing the
constitutional validity of a provision or legislation. As per the applicant, if the word 'sex' has to be
replaced by 'sexual orientation', it would require a constitutional amendment.
3. It is also the case of the applicant that the Yogyakarta principles which have been heavily relied
upon by the petitioners to bolster their stand have limited sanctity inasmuch as they do not amount to
an international treaty binding on the State parties and there are no inter-governmentally negotiated
international instruments or agreed human rights treaties on the issue of LGBTs.
4. The applicant has also drawn the attention of this Court to the decision in Union of India and
another v. Deoki Nandan Aggarwal27 wherein it was observed that the Court cannot rewrite, recast
or re-frame the legislation for the good reason that it has no power to legislate since the power to
legislate has not been conferred upon the Court and, therefore, the Courts cannot add words to a
statute or read words into it which are not there. The Courts are to decide what the law is and not
what it should be.
5. Impact of interpreting the word ‘sex’ to include ‘sexual orientation’ on KADIAN society -
i. Impact on Institution of Marriage - In Indian society, marriage is perceived as a system of roles
of a man and a woman whose union has been given social sanction as a husband and wife. 28In
contemporary societies, marriage is sometimes interpreted more liberally and includes
cohabitation also.29 However, that even this more liberal definition usually excludes homosexual
couples30. Therefore, including “sexual orientation” would lead a threat and danger to the
society’s most fundamental social institution.31
ii. Impact on Institution of Family - The definition of "family" changes as the needs of the greater
society change.32 In today’s liberal society, social institutions have been reduced severely33 and

26
Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277.
27
Union of India and another v. Deoki Nandan Aggarwal, 24(2004) 5 SCC 518 251992 Supp. (1) SCC 323 44.
28
Ram Ahuja, Society in India, 114, (1st Ed.1999).
29
S. Khushboo v. Kanniammal & Anr., Criminal appeal No. 913, (Supreme Court, 18/03/2016); Madan Mohan Singh & Ors v.
Rajni Kant & Anr.,Civil Appeal No. 6466, (Supreme Court, 14/03/2016); D. Velusamy v. D. Patchaiammal, Criminal Appeal No.
2028-2029, (Supreme Court, 15/05/2010).
30
Available at http://www.encyclopedia.com/doc/1O88-marriage.html , last seen on 12/03/2019.
31
Rhoda E. Howard, Gay rights and right to a family, 23 Human Rights Quarterly, 2001.
32
Gordon Neal Diem, The Definition of "Family" in a Free Society, published by the Libertarian Nation Foundation , available at
http://libertariannation.org/a/f43d1.html , last seen on 15/03/2019.
33
http://www.heritage.org/research/lecture/why-strong-social-institutions-are-needed, last seen on 17/03/2019.
6
 people define families for themselves. 34 In religious societies, the family is a reproductive or a
biological unit consisting of a man and a woman having a socially approved sexual relationship. 35
It will further affect the continuation of progeny. Henceforth, it is submitted that the
SONDHEIM society is not ready to accept such an interpretation of the word ‘sex’ in the current
scenario.
iii. Impact on other constituent elements of society - Empirical research and clinical experiences
clearly demonstrate that households with a homosexual behaving adult member inherently [1]
impose unique harms of profound stressors on children, [2] are substantially less stable than
heterosexual families, and [3] deprive children of the needed benefits of having relatively better
psychologically adjusted adult family member (mother and father). 36 There are also differences in
sexual behaviour and practices by children raised by homosexual parents. They follow the role
modelling of their parents in homosexuality.37 This will also relate to the right to adopt a child by
homosexual couples.38
iv. Potential negative impacts of Expansive interpretation of Article 15 on public health –Sexual
relationships between members of the same sex, however, expose gays, lesbians and bisexuals to
extreme risks of STDs, physical injuries, mental disorders and even a shortened life span.39

6. Henceforth, it is submitted that considering all the aforementioned authorities and arguments, the
respondent pleads that the word ‘sex’ under Art. 15 should not be interpreted to include ‘sexual
orientation’ and the order was within the constitutional ambit of Article 14 and 15 and not arbitrary
in any sense.

G. Article 15(1) is not violated.

1. According to Article 15(1) of the Constitution of Kadia,
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.”40

2. Therefore, in the present case, there is no discrimination on the basis of any of the above criteria, as
34
Gordon Neal Diem, The Definition of "Family" in a Free Society published by the Libertarian Nation Foundation , available at
http://libertariannation.org/a/f43d1.html , last seen on 17/03/2019.
35
Kuljit Kaur, Legal Education and Social Transformation, The Study Material for the Course of Law and Social Change, at
WBNUJS, (Compiled by Prof. M. K. Sinha for LL. M. First Semester, 2010-11).
36
George A. Rekers, Review of Research on Homosexual Parenting, Adoption, And Foster Parenting, available at
http://www.catholiceducation.org/articles/homosexuality/ResearchReviewHomosexualParenting.pdf, last seen on 20/03/2019.
37
Larrry Houston, Homosexual Parenting Myth, Chapter 11, 26/03/2007, available at http://banap.net/spip.php?article82, last seen
on 25/03/2019.
38
Article 9(2), European Convention on Human Rights, 1953.
39
https://www.cdc.gov/std/stats17/2017-STD-Surveillance-Report_CDC-clearance-9.10.18.pdf ;
http://naco.gov.in/sites/default/files/HIV%20SENTINEL%20SURVEILLANCE_06_12_2017_0.pdf
40
Article 15(1), Constitution of India.
7
 TRISCO is firstly not a state, so this provision does not apply on it. Further, ‘sex’ cannot be
interpreted in a way to include sexual orientation, as proved above.

III. WHETHER REFUSING THE MEMBERSHIP AND LIFETIME BAN IS IN

VIOLATION OF ARTICLE 19 AND 21 OF THE CONSTITUTION OF
KADIA?

A. There is no violation of Article 19 as the acts of TRISCO are saved by the exceptions in Article
19(2) of the Constitution of Kadia.
1. According to Article 19(2) of the Constitution of Kadia,
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes reasonable restrictions on the exercise of
the right conferred by the said sub-clause in the interests of 4 [the sovereignty and integrity of India,]
the security of the State, friendly relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an offence.

2. In Ramesh Prabhoo41, 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 behavior and propriety. The court has cited with approval
the following observation from an English case42:
“…… 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….”
In the present case, it is clearly mentioned in the facts that the object of trust is to practice
SONDHEIM religion on the basis of custom and tradition, and it does not legally approve
homosexuality and adultery as they are against the religious beliefs of SONDHEIM religion, and
KADIA is a country where societal system is influenced more by customs and traditions which are
religion based. Therefore, prevalence of such practices in the society would be shocking and
disgusting for the other members. Therefore, there is no violation of Article 19 as the act of TRISCO
is well protected within the exception clause.
41
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113 : (1996) 1 SCC 130.
42
Knuller (Publishing, Printing and Promotions) Ltd. v. Director of Public Prosecutions, (1972) 2 All ER 898
8
The acts of TRISCO are in consonance with Article 21 of the Constitution of Kadia as [B] There is no
violation of Article 21 of the Constitution of KADIA, [C] Homosexuality is a high risk for the society, and
[D] Adultery affects morality of the society.

H. There is no violation of Article 21 of the Constitution of Kadia.

1. In the present case, there has been no violation of Article 21 of the Constitution. To establish of
the violation Article 21, the act should be subjected to the equality test of Article 14 and test of
reasonableness under Article 19.43Article 14 ensures fairness44and guarantees against
arbitrariness.45 It provides that every action of the government must be informed by reasons and
guided by public interest.46 Article 19 provides that a restriction can be characterized to be
reasonable if it strikes a balance between the fundamental right and restriction imposed thereon.47
2. Right to privacy is an integral part of right to life guaranteed under Art. 2148 of the Constitution.49
This is a cherished constitutional value, and it is important that human beings be allowed
domains of freedom that are free of public scrutiny unless they act in an unlawful manner. 50
However, there cannot be any such thing as absolute or uncontrolled liberty wholly freed from
restraint for that would lead to anarchy and disorder.51
3. In present case TRISCO is a popular trust in KOBEE STATE which does not approve legally the
practices of adultery and homosexuality in SONDHEIM Culture which is reasonable according to
their religion, custom and culture. TRISCO trust is a registered trust under KADIA Trusts Act as
public trust and it confers numerous reimbursements upon the trustee for financial assistance. With
this recognition TRISCO act in accordance with strategy of non-discrimination, on grounds of

43
Maneka Gandhi v. Union of India.AIR 1978 SC597.
44
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101; Mahesh Chandra v. Regional Manager, U.P.
Financial Corpn, AIR 1993 SC 935
45
Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872; Netai Bag v. State of West Bengal, AIR 2000 SC 3313
46
M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160; LIC v. Consumer Education and Research Centre, AIR
1995 SC 1811.
47
Om Kumar v. Union of India, AIR 2000 SC 3689.
48
Article 21 of the Constitution of India – Protection of life and Personal Liberty – No person shall be deprived of his life or
personal liberty except according to procedure established by law.
49
People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568.
50
Ram Jethmalani & Ors. v. Union of India & Ors., (2011) 8 SCC 1.
51
Mr. ‘X’ v Hospital ‘Z’, AIR 1995 SC 495.
9
 religion, race, caste, sex/sexual orientation, place of birth, age, disability, descent and residence.
The TRISCO has an option for extending membership to persons irrespective of their status or
belief.

4. To illustrate this, the intervenor draws the attention of this Court to W. Friedmann from 'Law in a
Changing Society'52 wherein he has observed that to prohibit a type of conduct which a particular
society considers worthy of condemnation by criminal sanctions is deeply influenced by the
values governing that society and it, therefore, varies from one country to another and one period
of history to another

5. The applicant has submitted that the purpose of criminal law is to protect the citizens from
something that is injurious and since carnal intercourse between two persons is offensive and
injurious, it is well within the State's jurisdiction to put reasonable restrictions to forbid such
aberrant human behaviour by means of legislation, for it is the duty of the State that people
with abnormal conduct are prohibited from imperiling the life, health and security of the
community. Unrestrained pleasure, and that too of a lascivious nature, is not conducive for
the growth of a civilized society, such inordinate gratification needs to be curbed and, thus,
prohibition against carnal intercourse as defined in Section 377 IPC does not violate the
constitutional rights of a person.

I. Homosexuality is a high risk activity for the society.

1. According to Sec.377 of  IPC is gender neutral and covers voluntary acts of carnal
intercourse against the order of nature irrespective of the gender of the persons committing
the act. They pointed out that the section impugned in the writ petition includes the acts of
carnal intercourse between man and man, man and woman and woman and woman and
submitted that no Constitutional right vests in a person to indulge in an activity which has
the propensity to cause harm and any act which has the capacity to cause harm to others
cannot be validated. They emphasized that anal intercourse between two homosexuals is a
high risk activity, which exposes both the participating homosexuals to the risk of
HIV/AIDS and this becomes even grave in case of a male bisexual having intercourse with
female partner who may not even be aware of the activity of her partner and is yet exposed

52
Law in a Changing Society'by W Friedmann Columbia University Press (1 April 1972).
10
 to high risk of HIV/AIDS. They argued that Sec.377 IPC does not violate the right to privacy
and dignity guaranteed under Art. 21 of the Constitution.

2. That the impugned order does not discuss the concept of “carnal intercourse against the
order of nature” and does not adequately show how the section violates the right to privacy
and that also the right to privacy can be curtailed by following due process of law and the
Code of Criminal Procedure prescribes a fair procedure, which is required to be followed
before any person charged of committing an offence under Sec. 377 IPC can be punished.
The right to privacy does not include the right to commit any offence as defined
under Sec.377 IPC or any other section.53

3. The offence under Sec 377 implies sexual perversity Fazal Rab Choudhary v. State of
Bihar54 involves Carnal intercourse between two persons which is offensive, injurious and
against the order of nature, it is well within the jurisdiction of state to put reasonable
restrictions on it.

J. Adultery affects morality of the society.

1. In present case also Mr. Shresth confessed to his wife that he had illicit relationship with
Mrs. Ruby.
2. By deterring individuals from engaging in conduct which is potentially harmful to a marital
relationship, Sec 497 is protecting the institution of marriage, and promoting social well-being.

3.  That Art. 21 provides that the right to life and liberty is subject to procedure prescribed by
law. Reference has been made to the judgments of this Court in A.K. Gopalan v. State of
Madras55, R.C. Cooper v. Union of India 56, Maneka Gandhi v. Union of India57, and
submitted that Gopalan’s case has not been overruled by Maneka Gandhi’s case.

4. There is no uncanlised and unbridled right to privacy and the said right cannot be abused.
The intervener has contended that there is no personal liberty to abuse one‘s organs and that
the offensive acts prescribed by Sec. 377 IPC are committed by abusing the organs. It was

53
Suresh Kumar Koushal vs Naz Foundation, (2014) 1 SCC 1.
54
Fazal Rab Choudhary v. State of Bihar ,AIR 1983 SC 323, 1983 CriLJ 632, 1982 (1) SCALE 803, (1982) 3 SCC 9.
55
A.K. Gopalan v. State of Madras ,1950 SCR 88.
56
R.C. Cooper v. Union of India ,(1970) 1 SCC 248.
57
Maneka Gandhi v. Union of India ,(1978) 1 SCC 248.
11
 also alleged that decriminalization of Sec 377 will detrimentally affect the institution of
marriage and will shamble social culture. The future possibility of misuse of
decriminalization was also emphasized.

5. The freedom to have a consensual sexual relationship outside marriage by a married person,
does not warrant protection under Art 21. And moreover the right to privacy and personal
liberty is not an absolute one and it is subject to reasonable restrictions when legitimate
public interest is involved. Since Sec. 497 was a special provision for the benefit of women,
it is saved by Art 15(3) which is an enabling provision providing for protective
discrimination. An act which outrages the morality of society, and harms its members, ought
to be punished as a crime. Adultery falls squarely within this definition. Family is the
fundamental unit in society, if the same is disrupted it would impact stability and progress.
The state therefore has a legitimate public interest in preserving the institution of marriage.
Adultery has the effect of not only jeopardizing the marriage between the two consenting
adults, but also affects the growth and moral fibre of children. Hence the State has a
legitimate public interest in making it a criminal offence. Though adultery may be
committed in private it is not a victim-less crime. It violates the sanctity of marriage, the
right of a spouse to marital fidelity of their partner and breaks the fundamental unit of the
family affecting the growth and well-being of the children, the family and the society in
general.

12
IV. WHETHER THE ACTS OF TRISCO ARE VIOLATIVE OF ARTICLE 25 OF
THE CONSTITUTION OF KADIA?
A. Rights under art. 25 aren’t an absolute right.
1. Article 25(1) guarantees to every person, and not only to the citizens of India, the “freedom of
conscience” and “the right freely to profess, practice and propagate religion”. This, however, is
subject to public order, health, morality, and other provisions relating to Fundamental Rights. The
state is not, however, prevented from making any law regulating or restricting any economic,
financial, political or other secular activity which may be associated with religious practice [Art.
25(2)(a)]; or any law providing for social welfare and reform, or for throwing open of Hindu
religious institutions of a public character to all classes and sections of the Hindus [Art. 25(2)(b)].
In Art. 26(a) the words establish and maintain’ go together it means therefore that when: an
institution has been established by a religious denomination then it can claim the right to maintain
the same as well. The right to maintain’ an institution includes the right to administer as well A
denomination has no right to maintain an institution which has not been established by it.

2. The Supreme Court has observed that "no rights in an organised society can be absolute.

Enjoyment of one's right must be consistent with enjoyment of rights also by others."58 and
more so, the right to religion has been expressly subjected to public order, morality and health
as enshrined under Article 25 (1)59 and various international instruments 60 have concurred the
same. In the present case the act of Mr. Rocky, Mr. Shresth and Mr. Gopi have indulged into
an act which is against the morality clause of the reasonable restrictions of the article 25 of

58
Acharya Mahajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1975 SC 2098: (1975) 1 SCC 11.
59
Article 25(1), Constitution of India.
60
Article 18(2), International Covenant on Civil and Political Rights, 1966; Article 18,Universal Declaration of Human
Rights, 1948; Article 9(2), European Convention for protection of Human Rights.

13
 the Constitution Of India.

K. The right to religion is subject to fundamental rights of others.

1. A person can exercise his religious freedom so long as it does not come into conflict with the
exercise of Fundamental Rights of others.61Enjoyment of one's right must be consistent with the
enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring
about a voluntary harmony, the state has to step in to set right the imbalance between competing
interests.62The Court has further observed that "a particular Fundamental Right cannot exist in
isolation in a water tight compartment. One Fundamental Right of a person may have to co-exist in
harmony with the exercise of another Fundamental rights by others and valid exercise of power by
the State.63

2. In Clause (3) of Article 18 of the International Covenant, it is provided that the freedom of
religion guaranteed by that Article 18 to everyone is subject to fundamental rights of
others.64Though there is no express provision in the Indian Constitution, in identical
language, the same conclusion can be drawn from the words 'subject to the other provisions
of this part' 65It also follows from the general limitation to all human rights, as stipulated by
Article 29(2) of the Universal Declaration and Article 12(3) of the Covenant.

L. Article 26 gives the Freedom to manage religious affairs.

1. Article 26(b) to manage its own affairs in the matter of religion gives the right to religious
denomination to manage their religious organization with free will the test to prove whether a
religious organization is a denomination was laid In The Durgah Committee, Ajmer & Anr. v.
Syed Hussain Ali & Ors.66 , another Constitution Bench considering the ratio laid in Shirur
Math's case explained Sri' Venkataramana Devaru's case 67and had laid down that the words
"religious denomination" under Article 26 of the Constitution must take their colour from the
61
See Professor M.P Jain, Indian Constitutional Law, 349 (Samaraditya Pal, Justice Ruma Pal, 6th Ed., 2013).

62
Acharya Mahajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1975 SC 2098: (1975) 1 SCC 11. See
also Church of God (full Gospel) in India v. K.K.R Majestic Colony Welfare Association, (2000) 7 SCC 282: AIR 2000 SC 2773.
63
Part IV, Constitution of India.
64
Ali Akbar v. Dt. Musiff Pudukkotiar, AIR 1993 Mad 51.
65
Durga Das Basu's Commentary on the Constitution of India, 3481 (Justice Y.V Chandrachud, Justice S.S Subbramani,
Justice B.P Banerjee, 8th Ed. 2008).
66
In The Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. [1962] 1 SCR 383.
67
Sri' Venkataramana Devaru v. State of Mysore,[1958] SCR 895.
14
word religion and if this be so the expression religious denomination must also specify three
conditions, namely it must be (1) a collection of religious faith, a system of belief which is
conducive to the spiritual well-being i.e., a common faith; (2) common organisation; (3) a
designation by a distinctive name. It is humbly submitted that in the present case the TRISCO
Trust satisfies all the above laid conditions so in the present case TRISCO is proven to be a
religious Denomination so it has all the right maintain and administer their own rules and
regulations.

15
 PRAYER FOR RELIEF

WHEREFORE,IN THE LIGHT OF THE ISSUES RAISED,ARGUMENTS ADVANCED,REASONS GIVENAND

AUTHORITIES CITED, THIS HON‟BLE COURT MAY BE PLEASED TO:

I. HOLD THAT THE WRI T PETITION IS NOT MAINTAINABLE IN THE

PRESENT CASE IN THE SUPREME COURT OF KADIA.

II. HOLD THAT THE ACTIONS OF THE TRISCO TRUST HAVE NOT
VIOLATED ARTICLE 14 AND 15 OF THE CONSTITUTION OF KADIA.

III. HOLD THAT REFUSING THE MEMBERSHIP AND LIFETIME BAN IS NOT
IN VIOLATION OF ARTICLE 19 AND 21 OF THE CONSTITUTION OF
KADIA.

IV. HOLD THAT THE ACTS OF TRISCO ARE NOT VIOLATIVE OF ARTICLE
25 OF THE CONSTITUTION OF KADIA.

AND ANY OTHER RELIEF THAT THIS HON‟BLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF

WHICH IS RESPECTFULLY SUBMITTED.

Sd/-

COUNSELS FOR THE RESPONDENT

16