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(i)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
[2.4] That Mr. Robb himself is guilty of offence under section 377.
8. PRAYER 16
(ii)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
TABLE OF ABBREVIATIONS
& And
§ Section
₹ Indian Rupees
Anr. Another
Art Article
Bom Bombay
Cr. Criminal
Corp. Corporation.
Govt. Government
HC High Court
Ltd. Limited
(iii)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
No Number
Ors. Others
Org. Organisation.
P. Page
SC Supreme Court
Vol. Volume
v. Versus
(iv)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
INDEX OF AUTHORITIES
TABLE OF CASES
(v)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
26. Jatan Singh & Anr. v State of NCT Delhi 2009 Indlaw DEL 5
1940
(vi)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
(vii)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
47. Sunil Poddar & Ors. v Union Bank of 2008 (2) SCC 326 3
India
48. Suresh Kumar Koushal & Anr. v. Naz AIR 2014 SC 563 3,9
Foundation & Ors
49. Thiru Muruga Finanace v. State of Tamil AIR 2000 Mad 137 8
Nadu
(viii)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
OTHER AUTHORITIES:
1. Convention for the Protection of Human Rights and Dignity of the Human Being with
regard to the Application of Biology and on Human Rights and Biomedicine, Arp. 4,
1997, E.T.S. No. 164 (entered into force Dec 1, 1999).Medicine: Convention
BOOKS:
REPORTS:
National AIDS Control Organisation, Annual Report 2011-12, page 9.
UN Report on Global AIDS Epidemic, 2008, pp 47-50.
National AIDS Control Organisation, Annual Report 2014-15.
(ix)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
STATEMENT OF JURISDICTION
The Respondents do not submit to the Jurisdiction of the Special leave to Appeal under
Article 136 of the Constitution of Lexton and challenge its maintainability.
order passed or made by any court or tribunal constituted by or under any law
(x)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
STATEMENT OF FACTS
The material case arises out of a Special Leave Petition filed by Rob before the Supreme Court
of Lexton to strike down Section 377, LPC and to enhance the punishment awarded to the Mr.
Joseph by the trial court which was further upheld by the high court.
I
--------------------------------------------BACKGROUND: -------------------------------------------------
State of Lexton is a secular country whose socio-legal system is similar to that of India. It aims
to protect rights of LGBT community and homosexuals. However, State of Lexton does not
recognize any right of the LGBT community or homosexuals. Further Constitution of Lexton
guarantees its citizens the right to privacy as their fundamental right.
II
Mr. Robb and Mr. Dillon works as a legal assistant and marketing manager respectively in
V&KPvt. Ltd. Their constant interaction in Office attracted both of them towards each other and
this resulted in carnal intercourse between them.
When they opened their relation to their parents, Dillon faced severe opposition from his parents
and because of their rebellious behavior and regular heated arguments, he moved to Robb’s house
and started living with Robb and his family.
III
----------------------------------------HAPPENING OF INCIDENT-----------------------------------
Robb used to reside with his parents and his Uncle Joseph. Robb's mother supported their
relationship and respected their relation however; Joseph was against their relationship stating it
to be a disgrace upon the society. Robb, being from legal profession was well aware about the
LGBT rights and therefore, he denied the outrageous behavior of his Uncle and continued to live
with Dillon. Agitated by Robb's move, Joseph decided to emasculate Robb using dangerous
weapon which led to grievous hurt.
(xi)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
IV
Robb approached the trial court for penalizing Joseph for grievous hurt and also for violating his
LGBT rights while, Joseph defended his move of emasculation. The trial court awarded Joseph
imprisonment for a term of seven years and a fine of Rs.50000 ignoring the unnatural relationship
between Robb and Dillon.
Robb moved to the Hon’ble High Court and appealed for awarding more stringent punishment to
Joseph and also for declaring Sec.377 of Lexton Penal Code unconstitutional. The Hon’ble high
court maintained the decision of lower court and rejected to grant the certificate of appeal.
VII
--------------------------- INSTANTANEOUS SPECIAL LEAVE PETITION-----------------------
Aggrieved by the decision of the Hon’ble High court, Robb filed a SLP challenging the validity
of Section 377 of LPC and to enhance the punishment awarded to Mr. Joseph before the Hon’ble
Supreme Court for the same.
(xii)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
STATEMENT OF ISSUES
ISSUE 1
ISSUE 2
ISSUE 3
ISSUE 4
(xiii)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
SUMMARY OF ARGUMENTS
Article 136 empowers the Supreme Court to grant in discretion Special leave to Appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India. It vests in the Supreme Court a discretionary power to be
exercised for satisfying the demands of justice under exceptional circumstances. Such power is to
be exercised with caution and in accordance with law and set legal principles. In the instantaneous
matter SLP is not maintainable as Special Leave cannot be granted when substantial justice has
been done and no exceptional or special circumstances exist for case to be maintainable. The
practice of non-interference in the decisions of lower courts is followed by the Supreme Court
when it is of the view that all relevant factors have been taken into consideration as in the
instantaneous matter.
It is most humbly submitted before the Hon’ble Supreme Court that the quantum of sentence and
fine awarded by the Trial Court are adequate and shall not be increased. The respondent contends
that the decision of trial court was appropriate and shall be upheld by the Supreme Court. Firstly
emasculation has not taken place and also the magnitude of the offence is in proportion to the
punishment awarded. The fact of the present case shows that the act of Mr. Joseph was impulsive.
Also Mr. Robb is himself guilty of offence u/s 377. So, considering these points the court should
not increase the punishment of Mr. Joseph.
(xiv)
-MEMORIAL ON BEHALF OF RESPODENT-
1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L
It is contended that Section 377 does not violate any Fundamental Rights of the citizens. The
classification of sexual acts based on whether they are in consonance with the ordinary course of
nature or not is founded on an intelligible differentia and there is rational nexus between such
classification and objective sought by the legislation. Further, Section 377 is not arbitrary as mere
possibility of abuse of power does not render a legislation arbitrary. The state has compelling and
legitimate interest in the form of maintaining public health, decency and morality by enforcing
the provisions of Section 377. Section 377 does not violate Article 21 as it qualifies the test of
substantive due process and is in the interest of public health. It is also contended that Right to
Privacy u/a 21 is not absolute and it may be curtailed by following due process.
It is contended that Section 377 is constitutionally valid it does not violate any Fundamental Rights
of the citizens. Further Section 377 is the only defense against male rape, the only protection
against animal sexual abuse and is in the interest of public health.
(xv)
-MEMORIAL ON BEHALF OF RESPODENT-