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NMIMS SVKM’s Kirit P Mehta School of Law Assessment Moot

Court Competition – 2020

STATE OF AVOCADO .....................PETITIONER

Vs.
Mr. THANOS DODI ...................RESPONDENT

&

RAINBOW RIDERS ...................PETITIONER

Vs.
UNION OF LATVIA ..................RESPONDENT

BEFORE THE HON’BLE SUPREME COURT OF LATVIA

MEMORANDUM ON BEHALF OF THE RESPONDENTS

MEMORANDUM OF ARGUMENTS FOR THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES

1. CONSTITUTIONAL PROVISIONS

2. STATUTES

3. CASES

4. LEGISLATIVE MATERIALS

5. REGULATIONS

6. BOOKS

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

PRAYER

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LIST OF ABBREVIATIONS

& And

AIR All India Report

Art. Article

CrPC Code of Criminal Procedure

HC High Court

Hon’ble Honourable

LGBT Lesbian Gay Bisexual Transgender

LPC Latvia Penal Code

NGO Non government organisation

PIL Public Interest Litigation

Pt. Point

SC Supreme Court

TGs Transgenders

u/A under Article

V. Versus

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STATEMENT OF JURISDICTION.

The Petitioners have approached the Hon'ble Supreme Court of Latvia under Article 32 of the
Constitution of Latvia.

The Respondents reserve the right to contest the jurisdiction of this Hon’ble Court.

The Article 32 of Constitution of Latvia reads as hereunder:

“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

(3). Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)

(4). The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.”

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STATEMENT OF FACTS.

 Amar Kapur, belonged to a middle class family lost both of his parents in a road accident
and later realised that he had a different sexual orientation and moved to Rumbai.
 In 2016, he met a member and supporter of the LGBT community, Prem Malhotra and
decided to undergo a sex change operation, and adopted the name Alisha after the
surgery. After which, she pursued a professional course and became a very famous
fashion designer.
 On the 25th of December, 2017 around 2am, Alisha came out of a room shouting and
accusing Mr. Thanos Dodi(a leading producer and a member of the ruling party) of
sexually assaulting and raping her. She was in the Christmas party hosted by Mr. Thanos
Dodi, at his beach house, in Rumbai.
 The medical examination detected alcohol consumption and also stated that she had been
subjected to intercourse.
 On 2nd March, 2018 Alisha committed suicide. And posted a video online in which she
stated that Mr. Thanos Dodi was responsible for her death. This led to him being charged
under sections 306 and 377 of LPC. However, he was acquitted of the charges due to
reasonable doubt and lack of evidence.
 Later in 2018, the I-TOO movement came into picture wherein a man and a woman
accused Mr.Thanos Dodi of sexually assaulting them.
 The lower house passed two bills [The Transgender Persons(Protection of Rights)
Bill,2019 and The Trafficking of Persons(Prevention, Protection and Rehabilitation)
Bill,2018] with a majority, thereby curbing begging and prostitution by transgender
people and they came into force in 2020.
 One of the hon’ble HC of Latvia, extended section 354-A (sexual assault) to the
transgender community. It was also held that the new laws took away the only means of
income of some transgender persons who relied on begging and working as sex workers.
 They also held that the government was not successful to provide those
affected with jobs or opportunities leaving them helpless.
 An NGO named Rainbow Riders filed a PIL in the SC of Latvia in which they challenged
the constitutionality of the rape law under the LPC. They stated that the law was not
gender neutral and made a request that she and her should be referred and used for the
LGBT community.
 Their PIL was also challenging the constitutional validity of the bills stated in pt.7.

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STATEMENT OF ISSUES.

ISSUE- I
WHETHER THE PILs FILED BEFORE THE HON’BLE SUPREME COURT ARE
MAINTAINABLE OR NOT.

ISSUE- II
WHETHER THE LAWS OF RAPE AND OTHER OFFENCES UNDER LATIVA
PENAL CODE ARE CONSTITUTIONALLY VALID IN LIGHT OF LGBT RIGHTS
OR NOT.

ISSUE- III
WHETHER “THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT,
2019,” AND “THE TRAFFICKING OF PERSONS (PREVENTION, PROTECTION
AND REHABILITATION) BILL, 2018”, ARE CONSTITUTIONALLY VALID OR
NOT.

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SUMMARY OF ARGUMENTS.

I. Whether the PILs filed before the Hon’ble Supreme Court are maintainable or
not.

The Respondents humbly submit before this Hon’ble Court that the present petitions
submitted are not maintainable. The petitions filed by Rainbow Riders are not maintainable
as its Fundamental Rights are not violated and hence have no locus standi so as to file the
said PILs. These PILs are not maintainable also on the grounds that they are filed in the
interests of transgender community which cannot be termed as larger public interest.
Furthermore, the petition would not be maintainable under Article 32 as an alternative
remedy has been provided under Article 226, also when the constitutionality of a petition is
challenged the writ petition must be filed in the High Court under the Article 226 which will
also contribute in justifying as to why this petition will not be maintainable.

II. Whether the laws of Rape and other offences under Latvia Penal Code are
constitutionally valid in light of LGBT rights or not.

It is duly submitted before the Hon’ble Court that the laws of rape and other offences under
LPC are completely and legally valid. The arguments are twofold. Firstly, it is submitted that
the articles provide for special provisions for women and children as u/A. 15 (3) relating to
the word “she” in laws or rape and other offences. And secondly, it is submitted that the laws
are not discriminatory to transgender community as it’s their will to be recognized as either
one of binary gender or as third gender. Remedies are thereby provided both for binary
genders as well as third genders in LPC and TGs Act respectively.

III. Whether The Latvia Transgender Persons (Protection of rights) Act, 2019 and
The Latvia Trafficking of persons (Prevention, Protection and Rehabilitation)
Bill, 2018 are constitutionally valid or not.

The Respondents duly submit before the Hon’ble Court that both the concerned acts are
constitutionally valid as per the provisions of Art. 14, 15, 16 and 21. The arguments are
manifold. As per Art. 14, 15 and 16, State shall provide equality before law and equal
protection of law to all citizens and should not be discriminatory in any aspect whether
education or job opportunities or cultural inclusion. With complete compliance to these
articles, specific provisions are made for in the said acts rendering it to be constitutionally
valid. Art. 21 states right to life with dignity which also includes right to livelihood with
certain exceptions as provided by law. The said acts include provisions which ensure proper
livelihood to transgender people and enable them to live their lives in dignity.

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ARGUMENTS ADVANCED.

I. WHETHER THE PILs FILED BEFORE THE HON’BLE SUPREME COURT

ARE MAINTAINABLE OR NOT.

The counsel would like to humbly submit before the Hon’ble court that the insant matter
referred to in this PIL is not maintainable before the Court of Law. The petitioner lacks the
essential elements to prove the maintainability of the petition before this court. Though the
matters have been clubbed by the hon’ble court, yet there remain certain issues regarding the
maintainability of the petition which need to be highlighted, in this court in order to prevent
any miscarriage of justice.

A. ABSENCE OF LOCUS STANDI

There will be no action in the Supreme Court under Article 32, unless there has been an
infringement of any fundamental rights1, as it has been clearly mentioned earlier by the
supreme court that, “The violation of Fundamental Right is the sine qua non of the
exercise of the right conferred by Art. 32.”2
In the present case, there has been no violation of any of the fundamental rights of the
transgender community.
Furthermore, an individual needs to have locus standi when we say that their fundamental
rights have been infringed or violated or threatened to be violated.3 Here since we see that
there has been no violation of the locus standi of the petitioner, we can say that they do
not have any locus standi.
Moreover, there exists a self-restraint which has been imposed by this hon’ble court on
itself, while exercising the jurisdiction of Article 32, wherein, the party that is invoking
jurisdiction, has an alternative and at the same time effective remedy under Article 226 of
the Constitution, this rule however, can be termed as a Rule of Convenience rather than a
Rule of Law.4
However, when challenging the constitutionality of a provision, the writ petition should
be filed by the petitioner in the High Court under Article 226 of the Constitution.5
Mere apprehension that the petitioner would be deprived of his Fundamental Right is not
enough to invoke the jurisdiction of the Court under Article 32.6
Thus, it is humbly submitted before the Hon’ble Court that the present case is not
maintainable and it should be dismissed.

1
Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539.
2
Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344.
3
Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
4
Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748
5
State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 SCC 453
6
Magan Bhai v. Union of India, (1970) 3 SCC 400.

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B. SCOPE FOR ALTERNATIVE REMEDY.

In order to invoke the jurisdiction under Art. 32 of the Constitution to approach this
Court directly, it has to be shown by the petitioner as to why the High Court has not
been approached, could not be approached or it is futile to approach the High Court.
Unless, a proper reasoning is given, regarding this matter the filing of petitions under
the Article 32 of the Constitution, will be discouraged by the Courts.7
Hence, it is submitted that the petition submitted before this Hon’ble Court is not
maintainable and thus should be rejected.

C. NO LARGER PUBLIC INTEREST INVOLVED.

The main objective behind filing a Public Interest Litigation is to safeguard the interest of
the public and protect the legal as well as constitutional rights of disadvantaged people.
One of the main objectives of a Public Interest Litigation is to promote the interest of the
public at large and ensure that violation of legal or constitutional rights of larger number
of persons, poor, down-trodden, ignorant, socially or economically disadvantaged should
not go un-redressed.
Here, when we look at the TG population, they can be considered as a minority as
opposed to the population at large, and since these people are minorities so amending the
law would affect the other half of the society which is a majority population.
Hence, the laws should not be amended in a way which would hurt the sentiments of the
minority communities.

II. WHETHER THE LAWS OF RAPE AND OTHER OFFENCES UNDER

LATIVA PENAL CODE ARE CONSTITUTIONALLY VALID IN LIGHT OF
LGBT RIGHTS OR NOT.

The counsel submits before the Hon’ble court that the laws of rape and other offences
under Lativa penal code are constitutionally valid and not discriminatory to LGBT
community. The respondents submit the following arguments to affirm the same.

A. LAWS OF RAPE AND OTHER OFFENCES ARE CONSTITUTIONALLY

VALID.
It is humbly submitted before the Hon’ble Court that the laws of rape and other offences
provided as under LPC are constitutionally valid. Section 375 of LPC8 defines rape as
“sexual intercourse with a woman against her will, without her consent, by coercion,
misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of
unsound mental health and in any case if she is under 18 years of age.”

7
Union of India v. Paul Manickam, AIR 2003 SC 4622
8
Section 375, Indian Penal Code, 1860

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Section 376 provided for seven years of jail term to life imprisonment to whoever
commits the offence of rape. In Bishnudayal vs. State of Bihar9 the prosecutor, a girl of
13 or 14 years of age, who was sent by her father to accompany the relatives of his elder
daughter’s husband to look after her elder sister for some time, was forcibly ‘married’ to
the appellant and had sexual intercourse with her. The accused was held liable for rape
under Section 376.
The clause 3 of Article 15 states “nothing in the Article 15 shall prevent the State from
making any special provision for women and children.” In support of this statement, the
counsel would like to refer to the case of Vishakha v. State of Rajasthan10, wherein the
Supreme Court held that “gender equality” is extended to mean the protection of women
for sexual harassment and abuse. Another case that counsel would like to refer Air India
Cabin Crew Association vs Yeshawinee Merchant & Ors11, it was held that the ‘but-for-
sex’ test applies under 15(3) which means that no less favorable treatment is to be given
to women on gender based criterion which would favor the opposite sex and women will
not be deliberately selected for less favorable treatment because of their sex.
It shall be brought to notice of the Hon’ble Court that these articles and provisions of
LPC and Constitution are included so as to eliminate the discrimination and prejudices
faced by a particular section of society that is women and children. The power to amend
or eliminate any established section or article lies with legislature of the country. The
legislature of the country has put much thought into introduction of any article or section
and has made them keeping in mind the principles of natural justice and in the interest of
every section of society. Hence, questioning the morality and reasoning of the respected
authority shouldn’t be entertained in the Courts in the name of Justice.
The counsel hereby concludes that the existing laws of rape and other offences are
constitutionally valid.
B. RAPE LAWS ARE NOT DISCRIMINATORY.
It is humbly submitted before this Hon’ble Court that rape laws are not discriminatory in
nature. To support this statement the counsel would like to refer to the landmark
judgment of NALSA v. Union of India12 wherein the court upheld the right of all persons
to self-identify their gender. TGs right to decide their self identified gender is also upheld
and the centre and state Governments are directed to grant legal recognition of their
gender identity such as male, female, or as third gender. The transgender people can
identify themselves as he or she or third gender.
Furthermore, Article 354A sub clause (1) and (2) do not include the word woman which
makes it gender neutral in nature and provides punishments with rigorous imprisonment
for a term which may extend to three years, or with fine, or with both.13

9
Bishnudayal v. State Of Bihar, AIR 1981 SC 39
10
Vishakha v. State of Rajasthan, AIR (1997) SC 3011
11
Air India Cabin Crew Association vs Yeshawinee Merchant & Ors, AIR (2004) SC 187
12
Supra 14
13
Article 354(A), Constitution of India, 1949

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Remedies are provided both for women as well as TGs. As mentioned above, TGs are
free to choose their gender, however binary or third. If somebody chooses to be referred
to as ‘she’, then remedies will be provided as under laws of rape of LPC. Whereas, if they
choose to be neither but third gender, then remedies will be provided as under TGs act
which will further be explained with the help of third issue.
Hereby, the counsel submits that the laws of rape are not discriminatory in nature.

III. WHETHER THE LATVIA TRANSGENDER PERSONS (PROTECTION OF

RIGHTS) ACT, 2019 AND THE LATVIA TRAFFICKING OF PERSONS
(PREVENTION, PROTECTION AND REHABILITATION) ACT, 2018 ARE
CONSTITUTIONALLY VALID OR NOT.

It is humbly submitted before the Hon’ble Court that The Latvia Transgender persons
(protection of rights) act, 2019 and The Latvia Trafficking of persons (prevention,
protection and rehabilitation) act, 2018 fulfil every requirement of being constitutionally
valid and the same would be affirmed with the help of following arguments.

A. NOT VIOLATIVE OF ART. 14

Art.14 states that the State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.14 It also ensures equal protection
and hence a positive obligation on the State to ensure equal protection of laws by
bringing in necessary social and economic changes, so that everyone including TGs may
enjoy equal protection of laws and nobody is denied such protection. Article 14 does not
restrict the word “person” and its application only to binary genders. TGs who are neither
male nor female fall within the expression “person” and, hence, entitled to legal
protection of laws in all spheres of State activity, including employment, healthcare,
education as well as equal civil and citizenship rights, as enjoyed by any other citizen of
this country.15
This has been kept in mind and is included in the TGs Act. As per Chapter III,
recognition of identity of transgender persons, clause 4 (1), A transgender person shall
have a right to be recognised as such, in accordance with the provisions of this Act; and
clause 4(2) A person recognised as transgender under sub-clause (1) shall have a right to
self-perceived gender identity.
It is also mentioned under Chapter IV, Welfare measures by government, clause 8(1),
The appropriate Government shall take steps to secure full and effective participation of
transgender persons and their inclusion in society; and clause 8(3) The appropriate
Government shall formulate welfare schemes and programmes which are transgender
sensitive, non-stigmatising and non-discriminatory.

14
Article 14, Constitution of India, 1949.
15
National Legal Ser.Auth vs Union Of India & Ors, writ petition(civil) 400, on 15 April, 2014

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This concludes that the provisions of this act are made in tandem with the provisions of
the articles of constitution and hence the act in totality cannot be constitutionally invalid.

B. NOT VIOLATIVE OF ART. 15&16

Art.15 and 16 prohibit discrimination against any citizen on certain enumerated grounds,
including the ground of sex. In fact, both the Articles prohibit all forms of gender bias
and gender based discrimination. However,
Art. 15(3) states that nothing in this article shall prevent the State from making any
special provision for women and children.
The Latvia Trafficking of persons (prevention, protection and rehabilitation) Act, 2018 is
introduced so as “to prevent trafficking of persons, especially women and children and to
provide care, protection and rehabilitation to the victims of trafficking, to prosecute
offenders and create a legal, economic and social environment for the victims and for
matters connected therewith pr incidental thereto.”
Art.15(3) embodies the concept of real equality and permits the State to make reasonable
discrimination in favour of women through any legislation or executive order, without
being discriminatory as u/A.15(1)
Thus, the constitutionality of the act stands corrected as this act falls under the ambit of
Art. 15(3) and is valid.
However, Art.16 states that there shall be equality of opportunities for all the citizens in
matters relating to employment or appointment to any office under the State. It not only
prohibits discrimination on the ground of sex in public employment, but also imposes a
duty on the State to ensure that all citizens are treated equally in matters relating to
employment and appointment by the State.16
This is validated by TGs act under Chapter V, Obligation of establishments and other
persons, clause 9 stating “No establishment shall discriminate against any transgender
person in any matter relating to employment including, but not limited to, recruitment,
promotion and other related issues.”
Also clause 10 of the said act states that “Every establishment shall ensure compliance
with the provisions of this Act and provide such facilities to transgender persons as may
be prescribed.”
Furthermore, Chapter VI, Education, social security and health of transgender persons,
clause 13 and 14 of the said act17 state that “Every educational institution funded or
recognised by the appropriate Government shall provide inclusive education and
opportunities for sports, recreation and leisure activities to transgender persons without
discrimination on an equal basis with others.” and “The appropriate Government shall
formulate welfare schemes and programmes to facilitate and support livelihood for
transgender persons including their vocational training and self-employment.”
respectively.
16
Anuj Garg v. Hotel Association of India, appeal (civil) 5657, 2007
17
The Latvia Transgender persons (protection of rights) act, 2019

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It is therefore humbly submitted that both the acts are in complete compliance with the
concerned articles of constitution and are hence constitutionally valid.

C. NOT VIOLATIVE OF ART.21

Art 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life
and personal liberty. It states that “No person shall be deprived of his life or personal
liberty except according to procedure established by law.”
Art 21 protects the dignity of human life, one’s personal autonomy, ones right to privacy,
etc. Right to dignity has been recognized to be an essential part of the right to life and
accrues to all persons on account of being humans.18
Recognition of one’s gender identity lies at the heart of the fundamental right to dignity.
Gender, as already indicated, constitutes the core of one’s sense of being as well as an
integral part of a person’s identity. Legal recognition of gender identity is, therefore, part
of right to dignity and freedom guaranteed under our Constitution.
It is duly submitted before the Hon’ble Court that the TGs Act19 provides for such
recognition of identity and its preservation under Chapter III, Clause 4(1) and 4(2).
Also Chapter VI, Clause 13 and 14 of the TGs Act read as “Every educational institution
funded or recognised by the appropriate Government shall provide inclusive education
and opportunities for sports, recreation and leisure activities to transgender persons
without discrimination on an equal basis with others.” and “The appropriate Government
shall formulate welfare schemes and programmes to facilitate and support livelihood for
transgender persons including their vocational training and self-employment.”
respectively. These clauses are made in compliance with provisions of Art.21 relating to
right to livelihood as right to livelihood is encompassed as u/A. Art. 21 and deprivation
of the right to livelihood could occur if there was a just and fair procedure undertaken
according to law.20

18
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others
19
The Latvia Transgender persons (protection of rights) act, 2019
20
Olga Tellis and ors Vs. Bombay Municipal Corporation and ors, 1986 AIR 180

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PRAYER

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

1. The PILs filed by the petitioners are not maintainable and they shall pay compensation
for the same as decided by the Hon’ble Court; and

2. The laws of rape and other offences are constitutionally valid in the light of LGBT rights
and should not be mistaken for being discriminatory to a particular section of society.

3. The Latvia Transgender persons (protection of rights) act, 2019 and The Latvia
Trafficking of persons (prevention, protection and rehabilitation) act, 2018 stand
corrected as being constitutionally valid and follow the due processes and procedures of
law.

AND/OR
Since Transgenders are classified as “Others” giving them an individual identity, there
must be special laws which could be passed for them which would specifically deal with
rape and provisions for them. Pass any order that it deems fit in the interest of Justice,
Equity and Good Conscience. And for this act of kindness, the Respondents as in duty
bound, shall humbly pray.

Counsel for the Respondents.

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