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MEMORIAL ON BEHALF OF PETITIONER Formatted: Centered

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

NAVITAS, 2018

Before,

THE HON’BLE SUPREME COURT OF GAUL

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF GAUL

ANTICLIMAX PRODUCTION PVT. LTD. & ORS……………………..PETITIONER

v.

STATE OF BELGICA.................................................................................RESPONDENT

CLUBBED WITH

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF GAUL

ANTICLIMAX & ORS…………………………………….…………………….PETITONER

v.

UNION OF GAUL.………………………………………………………..….RESPONDENT

ON SUBMISSION TO THE SUPREME COURT OF GAUL

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

GOVERNMENT OF GAUL Commented [1]:


Not the Petitioner

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MEMORIAL ON BEHALF OF PETITIONER

TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................................................................. 11

INDEX OF AUTHORITIES......................................................................................................... 32

LIST OF ABBREVIATIONS ....................................................................................................... 53

STATEMENT OF JURISDICTION............................................................................................. 64

STATEMENT OF FACTS ........................................................................................................... 75

ISSUES RAISED .......................................................................................................................... 86

SUMMARY OF THE ARGUMENTS ......................................................................................... 97

ARGUMENTS ADVANCED .................................................................................................... 108

I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacridice de la Femme” IN THE

STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE CONSTITUTION OF

GAUL. ........................................................................................................................................ 108

[1.1] THAT THE RESTRICTION IMPOSED DOES NOT COMES UNDER THE AMBIT OF ARTICLE 19 (2). Formatted: Line spacing: Double

.................................................................................................................................................................................. 108

[1.2] THAT THE CONTENTION THAT THE RELIGIOUS SENTIMENTS OF THE PEOPLE ARE HURT HERE

SERVES FALLACIOUS GROUND FOR THE BAN OF MOVIE. ...................................................................... 1210

[1.3] THAT THE STATE CANNOT BAN THE MOVIE PASSED BY THE CENSOR BOARD. ...................... 1311

II.THAT SECTION 377 OF THE GAULISH PENAL CODE IS UNCONSTITUTIONAL AND

VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS, OUGHT TO BE

STRUCK DOWN. .................................................................................................................... 1412

[2.1] Section 377 IS VIOLATIVE OF FUNDAMENTAL RIGHTS ENUMERATED IN PART III OF GAULISH Formatted: Line spacing: Double

CONSTITUTION: ................................................................................................................................................. 1413

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MEMORIAL ON BEHALF OF PETITIONER

[2.2] THAT SECTION 377 OF GPC IS NOT IMMORAL. .................................................................................. 1614

[2.3] THAT THERE HAS BEEN AN ABUSE OF SECTION 377 OF GPC ........................................................ 1615

[2.4] SECTION 377 IPC AS AN INFRINGEMENT OF THE RIGHTS TO DIGNITY AND PRIVACY ........... 1716

PRAYER ................................................................................................................................... 2119

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MEMORIAL ON BEHALF OF PETITIONER

INDEX OF AUTHORITIES

Cases
1. Romesh Thappar v State of Madras AIR 1950 SC 124

2. S Rangarajan v P Jagjivan Ram 1989 SCR (2)204

3.Manohar Lal Sharma v Sanjay Leela Bhansali

4. Palko v Connecticut, 302 US 319 (1937).

5. F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145

6. Ushabehan Navichandran Trivedi v Bhagyalakhmi Chitra Mandir

7. Prakash Jha Production v Union Of India

8. Devidas Ramachandra Tuljapurkar Vs. State of Maharashtra (2015)

9. Jayalakshmi v. The State of Tamil Nadu (2007)

10. Egan v Canada (1995) 29 CRR (2nd) 79 at 106.

11.Prem Shankar Shukla v. Delhi Administration.

12. Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others.

13. Govind v. State of M.P.

14. Thornburgh v. American College of O and G, 476 US 747 (1986)

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MEMORIAL ON BEHALF OF PETITIONER

Cases

Devidas Ramachandra Tuljapurkar v State of Maharashtra (2015) 6 SCC 1 ............................... 14

District Registrar & Collector, Hyderabad v. Canara Bank(2004) 5 ALD 475........................... 19

Egan v Canada (1995) 29 CRR (2nd) 79 at 106........................................................................... 17

F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145 ............... 12

Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others (1981) 1 SCC 608.

................................................................................................................................................... 18

Govind v. State of M.P(1975) 2SCC 148. ..................................................................................... 18

Jayalakshmi v. The State of Tamil Nadu (2007)SCC On9 mad 3264 ........................................... 17

Maneka Gandhi v Union of India (1978) 1 SCC 248. .................................................................. 19

Manohar Lal Sharma v Sanjay Leela Bhansali(2018) SCC 770 .................................................. 12

Palko v Connecticut, 302 US 319 (1937)...................................................................................... 12

Prakash Jha Production v Union Of India(2011) 8 SCC 372. ..................................................... 13

Prem Shankar Shukla v. Delhi Administration(1980) 3 SCC 526. ............................................... 17

Romesh Thappar v State of Madras AIR 1950 SC 12 ................................................................... 10

S Rangarajan v P Jagjivan Ram 1989 SCR (2)20 ........................................................................ 11

Thornburgh v. American College of O and G, 476 US 747 (1986 ............................................... 19

Ushabehan Navichandran Trivedi v Bhagyalakhmi Chitra Mandir............................................ 13

Statutes

377. Unnatural offence. Indian Penal Code, 1872 ........................................................................ 15

Constitution of India 1950, art 14. ................................................................................................ 15

Constitution of India 1950, art .................................................................................................... 15

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MEMORIAL ON BEHALF OF PETITIONER

LIST OF ABBREVIATIONS

1. AIR -All India Rank

2. SC- Supreme Court Cases

3. SCC- Supreme Court Cases

4. SCR- Supreme Court reporter

5. Ltd. - Limited

6. Co. – Corporation

7. Ors.-Others.

8. Art.-Article

9. Pvt. -Private.

10. GPC- Gaul Penal Code.

11. GOI- Government of India

12. GBFC- Gaul Board of Film Certificate.

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MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

In the present Writ Petition (civil) No.312 of 2018 under article 32 of the Constitution of Gaul

concerning the matter Anticlimax Production Pvt. Ltd. & Ors. v State of Belgica & Ors. The

petitioner humbly submits to the jurisdiction of this Hon’ble Supreme Our of Gaul.

In the present Writ Petition (criminal) No.213 of 2018 under article 32 of the Constitution of Gaul

concerning the matter Anticlimax & Ors. v Union of Gaul, the petitioner humbly submits to the

jurisdiction of this Hon’ble Supreme Court of Gaul.

The present memorandum sets forth the facts, contentions and arguments in the present

case.

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MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF FACTS Formatted: Underline

 Anticlimax, director-producer of Gaul decided to recreate the story of Gaulish King

Androgynix and his wife, Queen Daffiris. This was when Whosmoralsarelastix, hired,

Agent Dubbelosix, he came back with information, apparently, Anticlimax had decided on

exploring the theme of homosexuality. When Anticlimax revealed the first poster of the

movie. The poster got mixed responses. The worst response was from the State of Belgica.

 While all of this was happening, another burning debate in Gaul was resurfacing. In 2009,

the High Court of Lutetia had repealed Section 377 of the Gaulish Penal Code (GPC).

However, things had changed in 2013 when the Supreme Court of Gaul overturned the

High Court judgment and reinstated Section 377.

 Many same sex couples who had earlier kept their sexual orientation a secret started

coming out. These activities infuriated the fringe groups. The GCS filed a petition before

the Supreme Court of Gaul seeking a ban on the movie. The petition was dismissed by the

Supreme Court stating that the decision on movie release should be taken by GBFC.

 Finally, the film went to the GBFC for approval. The panel suggested certain amendments.

Anticlimax made the amendments. However, the situation remained unchanged in Belgica

and the Government of Belgica, issued an order banning the public exhibition of the movie.

Anticlimax then filed a petition before the Supreme Court under Article 32 challenging the

ban on his film by the state of Belgica.

 By this time, the issue of LGBTQ rights was also gaining ground and so Anticlimax with

few others filed a writ petition demanding a repeal of the detested Section 377.

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MEMORIAL ON BEHALF OF PETITIONER

ISSUES RAISED Formatted: Underline

I. WHETHER THE BAN ON THE EXHIBITION OF THE FILM “Le Sacrifice de la

Femme” IN THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE

CONSTITUTION OF GAUL.

II. WHETHER SECTION 377 OF GAULISH PENAL CODE IS UNCONSTITUTIONAL

AND VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS,

OUGHT TO BE STRUCK DOWN.

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MEMORIAL ON BEHALF OF PETITIONER

SUMMARY OF THE ARGUMENTS Formatted: Underline

I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacrifice de la Femme” IN

THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE

CONSTITUTION OF GAUL.

The fundamental right Art. 19(1) (a) guarantees to all the citizen freedom of speech and

expression. Under Art.19 (2), however the state is not prevented from making a 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 the public order, decency or morality defamation or incitement to an

offence imposing in the interests of general public, reasonable restriction on the exercise of above

right. However, the ban on the movie does not comes under the reasonable restriction imposed

under 19 (2).

II. THAT SECTION 377 OF GAULISH PENAL CODE IS UNCONSTITUTIONAL AND

VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS, OUGHT

TO BE STRUCK DOWN.

Section 377 of the Gaulish Penal Code is violative of Fundamental Rights guaranteed by the

Constitution of Gaul. Sexual orientation is no ground for the discrimination also, morality does

not serves as the strong ground for the justification of the abrasive nature of the sec.377 as it

violate the very basis to live one’s life with dignity, as it infringes one’s right to live with dignity.

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MEMORIAL ON BEHALF OF PETITIONER

ARGUMENTS ADVANCED Formatted: Underline

I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacrificeridice de la

Femme” IN THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE

CONSTITUTION OF GAUL.

It is humbly submitted before the hon’ble Supreme Court of Gaul that the ban on the exhibition of

the film “Le Sacrifice de la Femme” in the state of Belgica is not violative of article 19 (1) of the

constitution of Gaul .

[1.1] THAT THE RESTRICTION IMPOSED DOES NOT COMES UNDER THE AMBIT

OF ARTICLE 19 (2).

It is humbly submitted before the Hon’ble Supreme Court of Gaul that the ban on the exhibition

of the movie is violative of the fundamental right to freedom of speech and expression because the

ban does not put reasonable restriction. Art. 19 (1) (a) guarantees to all the citizen freedom of

speech and expression. Under Art.19 (2), however the state is not prevented from making a 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 the public order, decency or morality defamation or incitement

to an offence imposing in the interests of general public, reasonable restriction on the exercise of

above right.

In the case of Romesh Thapar v. State of Madras1 the court defined public order “public order” as

that “state of tranquility which prevails among the members of a political society” and also held

that ordinary or local beaches of public order were no ground for restricting the freedom of speech.

In the case in hand only particular sect of people that is the conservatives Gaul in Belgica who

were protesting against the movie.

1
Romesh Thappar v State of Madras AIR 1950 SC 124

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MEMORIAL ON BEHALF OF PETITIONER

The counsel also emphasizes on the fact that the fundamental right of free expression guaranteed

under the Gaulish constitution covers even the medium of movies, if the film is unobjectionable

and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be

suppressed on account of threat of demonstration and procession or threats of violence. That would

tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the

duty of the State to protect the freedom of expression since it is a liberty guaranteed against the

State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory

duty to prevent it and protect the freedom of expression that the opinion on the film ought not to

be rested on the isolated passages disregarding the main theme and its message; here in the present

case famous director, Anticlimax just wants to give the message of revolutionary the social change

in state of Gaul.

Freedom of expression, which is legitimate and constitutionality protected cannot be held to

ransom by an intolerant group of people. The fundamental freedom under article 19(1) (a) can be

reasonably restricted only for the purposes mentioned in article 19 (2) and the restriction must be

justified on the anvil of necessity and not the quirks and of policies and operations is not a ground

for restricting expression. The present case after the expert committee made the significant changes

as well as the panel was all praises for the film and moreover the film did not even claimed about

historical authenticity. The GBFC thought this would greatly placate the conservative Gauls since

it attributes honour, bravery and virtue to Queen Daffiris. Indeed just because of the fear of

situation turning worst and because of the inefficiency of the authority of state of Bbeligica to

control the situation and maintain law and order is unfair. In case of S. Rangarajan v. P. Jagjivan

Ram2 the three judge bench S.C. headed by Justice KJ Shetty upheld the right of the filmmaker to

make movies and ruled that freedom of speech and expression which is legitimate cannot be held

2
S Rangarajan v P Jagjivan Ram 1989 SCR (2)204

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MEMORIAL ON BEHALF OF PETITIONER

to ransom by an intolerant group of people. The state cannot plead its inability to handle the hostile

audience problem. It is obligatory duty to prevent it and protect the freedom of expression.

In the case of Manohar Lal Sharma v. Sanjay Leeela Bhansali & others3. It was held the by the

bench, headed by Chief Justice Dipak Misra, favour of the Padmaavaat makers. “Creative

freedom, freedom of speech and expression can’t be guillotined... artistic freedom has to be

protected.” Misra said it is the state’s duty and obligation to maintain law and order, and it cannot

use its machinery to prohibit a film’s exhibition citing risk to public order. Hence, it is the ban on

the exhibition of the movie is violative of fundamental right guaranteed by the Gaulish

constitution.

[1.2] THAT THE CONTENTION THAT THE RELIGIOUS SENTIMENTS OF THE

PEOPLE ARE HURT HERE SERVES FALLACIOUS GROUND FOR THE BAN OF

MOVIE.

The Counsel further states that the right to freedom of speech and expression has been described

as the touchstone of individual liberty, the matrix, the indispensable condition of nearly every form

of freedom.4In F.A. Picture International v Central Board of Film Certification5, it was held that

artists, writers, playwrights and film makers are the eyes and the ears of a free society. They are

the veritable lungs of a free society because the power of their medium imparts a breath of fresh

air into the drudgery of daily existence. Their right to communicate ideas in a medium of their

choosing is as fundamental as the right of any other citizen to speak. Our constitutional democracy

guarantees the right of free speech and that right is not conditional upon the expression of views

which may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence,

those who express views which are critical of prevailing social reality have a valued position in

3
Manohar Lal Sharma v Sanjay Leela Bhansali(2018) SCC 770.
4
Palko v Connecticut, 302 US 319 (1937).
5 F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145.

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MEMORIAL ON BEHALF OF PETITIONER

the constitutional order. History tells us that dissent in all walks of life contributes to the evolution

of society. Those who question unquestioned assumptions contribute to the alteration of social

norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp

down on the free expression of opinion must hence be frowned upon. Sometimes these opinion

may have the clash with the sentiment of different people with different believes and feeling, living

in the society but the restriction can’t be imposed just on the basis of this ground. In the case in

hand when the film went for approval to GBFC the expert committee consist of 2 veteran historian

had all praises for it and also considered it as a work of fiction as well as the film did not even

claim historical authentication. Moreover, the most significant change made and the title of the

movie was altered. Thus, on the part of the appellant all the precautions was taken so as to avoid

the controversy and deprave himself of the onus of hurting anyone sentiments or feeling. Indeed,

in the case of Ushaben Navichandran Trivedi v. Bhagyalakhmi Chitra Mandir 6, it was held that

the movies are meant only for those who are willing to see it, no one is forcing anyone to see it

Thus, the contention that the movie hurts the religious feeling or the sentiments of sect of people

holds no valid ground.

[1.3] THAT THE STATE CANNOT BAN THE MOVIE PASSED BY THE CENSOR
BOARD.
The Censor Board is supposed to be a large expert body carefully constituted to cater to the need

of different segments of the society. The procedure for grant of certificate of exhibition to a films

quiet elaborate. So, its decision must be given full weight. According to the case Prakash Jha

Production v Union of Gaul7 , the Supreme Court ruled that state governments cannot ban a film,

which has been cleared by the censor board for public screening, on the apprehension that it could

6
Ushabehan Navichandran Trivedi v Bhagyalakhmi Chitra Mandir .
7
Prakash Jha Production v Union Of India(2011) 8 SCC 372.

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MEMORIAL ON BEHALF OF PETITIONER

cause law and order problem. The bench of Justice M. K. Sharma and A. R. Dave observed that

“it is the state duty the maintain law and order effectively and meaningfully”.

The filmmaker have right to exhibit the film. in pursuance of the certificate of exhibition obtained

by them. The film is not publicly exhibited. that is to say it is not being -shown to the one "who

do not want to see it; it is - shown on payment; People have to use their volition to see the picture.

There is no compulsion to see the flim. In consonance with the authorities sited it can be easily

concluded that the step taken by the Government of Belgica to ban the movie is arbitrary and

autonomous and defies the rationale of having statutory expert body .It is humbly submitted before

this court that freedom of speech and expression as enshrined under Article 19(1) (a) of the

Constitution is not absolute in view of Article 19(2) of the Constitution. We reiterate the said right

is a right of great value and transcends and with the passage of time and growth of culture, it has

to pave the path of ascendancy, but it cannot be put in the compartment of absoluteness. There is

constitutional limitation attached to it.8

II.THAT SECTION 377 OF THE GAULISH PENAL CODE IS UNCONSTITUTIONAL

AND VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS,

OUGHT TO BE STRUCK DOWN.

It is humbly submitted before the Hon’ble Supreme Court of Gaul that Section 377 of the Gaulish

Penal Code is violative of Fundamental Rights. This contention is based on the following

submissions:

[2.1] Section 377 IS VIOLATIVE OF FUNDAMENTAL RIGHTS ENUMERATED IN

PART III OF GAULISH CONSTITUTION:

8
Devidas Ramachandra Tuljapurkar v Vs. State of Maharashtra (2015) 6 SCC 1.

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MEMORIAL ON BEHALF OF PETITIONER

The counsel argues that on account of section 377 covering sexual acts between consenting adults

in private, it infringes the fundamental rights guaranteed by the Constitution of

Gaul. Homosexuality is no longer treated as a disease or disorder and near unanimous medical and

psychiatric expert opinion treats it as just another expression of human sexuality. Equality before

law The State shall not deny to any person equality before the law or the equal protection of the

laws within the territory of Gaul.9 Further, it has been submitted on behalf of the appellant that

unnatural offences—Whoever voluntarily has carnal intercourse against the order of nature with

any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment

of either description for a term which may extend to ten years, and shall also be liable to

fine.10 Legislative objective of penalizing “unnatural sexual acts” has no rational nexus to the

classification created between procreative and non-procreative sexual acts, and is thus violative of

Article 14 of Constitution of Gaul.

It is mentioned in our Constitution that State shall not discriminate against any citizen on grounds

only of religion, race, caste, sex, place of birth or any of them.11 The expression “sex” as used in

Article 15 cannot be read restrictive to “gender” but includes “sexual orientation” and, thus read,

equality on the basis of sexual orientation is implied in the said fundamental right against

discrimination. The Appellant argues that criminalization of predominantly homosexual activity

through Section 377 IPC is discriminatory on the basis of sexual orientation and, therefore,

violative of Article 15. Sexual orientation is a ground analogous to sex and that discrimination on

the basis of sexual orientation is not permitted by Article 15.

It is further to be stated that the prohibition against homosexuality in Section 377 GPC curtails or

infringes the basic freedoms regarding freedom of speech and expression in that, an individual's

9
Constitution of India 1950, art 14.Art. 14, Gaulish Constitution.
10
377 . Unnatural offence. IndianGaulish Penal Code, 1872.
11
Constitution of India 1950, art 15.Art.15, Gaulish Constitution.

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MEMORIAL ON BEHALF OF PETITIONER

ability to make personal statement about one's sexual preferences, right of association/assembly

and right to move freely so as to engage in homosexual conduct are restricted and curtailed. Thus,

Section 377 is violative of Article 19(1) (a).

The English law was reformed in Britain by the Sexual Offences Act, 19, which de-criminalized

homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the

report of Wolfenden Committee. The Committee advising the Parliament had recommended in

1957 repeal of laws punishing homosexual conduct.

[2.2] THAT SECTION 377 OF GPC IS NOT IMMORAL.

The counsel on behalf of the appellant contends that section 377 GPC is based upon traditional

Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e.,

for the purpose of procreation only. Any non-procreative sexual activity is thus viewed as being

“against the order of nature”. The submission is that the legislation criminalizing consensual oral

and anal sex is outdated and has no place in modern society. Section 377's legislative objective is

based upon stereotypes and misunderstanding that are outmoded and enjoys no historical or logical

rationale which render it arbitrary and unreasonable. Furthermore, morality by itself cannot be a

valid ground for restricting the right under Articles 14 and 21. Public disapproval or disgust for a

certain class of persons can in no way serve to uphold the constitutionality of a statute. In any

event, abundant material has been placed on record which shows that the Indian society is vibrant,

diverse and democratic and homosexuals have significant support in the population.

[2.3] THAT THERE HAS BEEN AN ABUSE OF SECTION 377 OF GPC

The Appellant claims to have been impelled to bring this litigation in public interest on the ground

that discriminatory attitudes exhibited by state agencies towards gay community, MSM or trans-

gendered individuals, under the cover of enforcement of Section 377 IPC, as a result of which

basic fundamental human rights of such individuals/groups (in minority) stood denied and they

were subjected to abuse, harassment, assault from public and public authorities.

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MEMORIAL ON BEHALF OF PETITIONER

By criminalizing private, consensual same-sex conduct, Section 377 GPC serves as the weapon

for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush

money; and perpetuates negative and discriminatory beliefs towards same-sex relations and

sexuality minorities. Section 377 GPC thus, creates a class of vulnerable people that is continually

victimized and tortured by the provision. It has been submitted that the fields of psychiatry and

psychology no longer treat homosexuality as a disease and regard sexual orientation to be a deeply

held, core part of the identities of individuals.

Further it is reverentially submitted that in Jayalakshmi v. The State of Tamil Nadu12 in which a

eunuch had committed suicide due to the harassment and torture at the hands of the police officers

after he had been picked up on the allegation of involvement in a case of theft. There was evidence

indicating that during police custody he was subjected to torture by a wooden stick being inserted

into his anus and some police personnel forcing him to have oral sex. The person in question

immolated himself inside the police station on 12.6.2006 and later succumbed to burn injuries on

29.6.2006. The compensation of Rs. 5, 00,000/- was awarded to the family of the victim, states the

magnitude and range of exploitation and harsh and cruel treatment experienced as a direct

consequence of Section 377 IPC.

[2.4] SECTION 377 IPC AS AN INFRINGEMENT OF THE RIGHTS TO DIGNITY AND

PRIVACY

Dignity as observed by Justice L'Heureux-Dube, is a difficult concept to capture in precise terms


13
[Egan v. Canada, (1995) 29 CRR (2nd) 79 at 106]. At its least, it is clear that the constitutional

protection of dignity requires us to acknowledge the value and worth of all individuals as members

of our society. It recognises a person as a free being who develops his or her body and mind as he

12
Jayalakshmi v. The State of Tamil Nadu (2007)SCC On9 mad 3264.
13
Egan v Canada (1995) 29 CRR (2nd) 79 at 106.

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MEMORIAL ON BEHALF OF PETITIONER

or she sees fit. At the root of the dignity is the autonomy of the private will and a person's freedom

of choice and of action. Justice V.R. Krishna Iyer observed that the guarantee of human dignity

forms part of our constitutional culture14.In Francis Coralie Mullin v. Administrator, Union

Territory of Delhi and others15, Justice P.N. Bhagwati said that right to life includes the right to

live with human dignity and all that goes along with it, namely, the bare necessaries of life such

as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself

in diverse forms, freely moving about and mixing and commingling with fellow human beings.

Every act which offends against or impairs human dignity would constitute deprivation pro tanto

of this right to live and it would have to be in accordance with reasonable, fair and just procedure

established by law which stands the test of other fundamental rights.” Article 17 of the

International Covenant on Civil and Political Rights (to which India is a party), refers to privacy

and states that no one shall be subjected to arbitrary or unlawful interference with his privacy,

family, home and correspondence, nor to unlawful attacks on his honor and reputation .The

European Convention on Human Rights also states that: “Everyone has the right to respect for his

private and family life, his home and his correspondence. There shall be no interference by a public

authority except such as is in accordance with law and is necessary in a democratic society in the

interests of national security, public safety or the economic wellbeing of the country, for the

protection of health or morals or for the protection of the rights and freedoms of others.”

The right to privacy thus has been held to protect a “private space in which man may become and

remain himself. The ability to do so is exercised in accordance with individual autonomy. Mathew

J. in Govbind v. State of M.P. 16 referring to the famous Article, “The Right to Privacy” by Charles

Warren and Louis D. Brandeis, (4 HLR 193), stressed that privacy - the right to be let alone - was

14
Prem Shankar Shukla v. Delhi Administration(1980) 3 SCC 526.
15
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others (1981) 1 SCC 608..
16
Govind v. State of M.P(1975) 2SCC 148..

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MEMORIAL ON BEHALF OF PETITIONER

an interest that man should be able to assert directly and not derivatively from his efforts to protect

other interests.

The privacy recognises that we all have a right to a sphere of private intimacy and autonomy

which allows us to establish and nurture human relationships without interference from the outside

community. The way in which one gives expression to one's sexuality is at the core of this area of

private intimacy. If, in expressing one's sexuality, one acts consensually and without harming the

other, invasion of that precinct will be a breach of privacy.

The Supreme Court has acknowledged that the sphere of privacy deals with persons and not places.

Explaining this concept in District Registrar & Collector, Hyderabad v. Canara Bank1718 Justice

Lahoti referred to observations of Justice Stevens in Thornburgh v. American College of O and G,

476 US 747 (1986)19, that “the concept of privacy embodies the moral fact that a person belongs

to himself and not to others nor to society as a whole”. Justice Lahoti, also referred to an

observation of a commentator in (1976) 64 Cal. L. Rev 1447, that privacy centres around values

of repose, sanctuary and intimate decision. Repose refers to freedom from unwanted stimuli;

sanctuary to protection against intrusive observation; and intimate decision, to autonomy with

respect to the most personal of life choices.

Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar

as it criminalizes consensual sexual acts between adults in private. These fundamental rights had

their roots deep in the struggle for independence and, as pointed out by Granville Austin in “The

Indian Constitution - Cornerstone of a Nation”, “they were included in the Constitution in the hope

and expectation that one day the tree of true liberty would bloom in India”. In the words of Justice

17
District Registrar & Collector, Hyderabad v. Canara Bank(2004) 5 ALD 475.
District Registrar & Collector, Hyderabad v. Canara Bank

19
Thornburgh v. American College of O and G, 476 US 747 (1986)

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MEMORIAL ON BEHALF OF PETITIONER

V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional

armor. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen20.

20
Maneka Gandhi v Union of India (1978) 1 SCC 248.

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MEMORIAL ON BEHALF OF PETITIONER

PRAYER

Therefore in the light of the facts of the case, issues raised, arguments advanced and authorities

cited this Hon’ble court may be pleased to adjudge and declare that:

In the case of Anticlimax Production Pvt. Ltd. & Ors. v. State of Belgica & Ors.

The ban on the exhibition of the film ‘Le Sacrifice de la Femme’ is violative Art. 19 (1) of Gaulish

Constitution. Commented [2]:


This is not your prayer. prayer is seeking something
from them. Like Remove the ban or compensation.
In the case of Anticlimax & Ors. v. Union of Gaul:

Sec.377 of the Gaulish Penal Code is unconstitutional and violative of Part 3 of Constitution of

Gaul and ought to be struck down.

And may pass any other order in favor of the Respondent that it may deem fit in the interest of

justice, equity and good conscience.

SD/-

Counsel for Petitioner.

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