AS6

IN THE HON’BLE SUPREME COURT OF INDIA

Writ Petition no. ****/2018

IN THE MATTER OF: writ petition filed on Constitutional Validity of Section 377 of
Indian Penal Code,1860 in light of Articles 21, 14 and 15 of The Constitution Of India
before the Hon’ble Supreme Court of India

AND

IN THE MATTER OF:

NAZ FOUNDATION ……………… APPELANT

Vrs.

UNION OF INDIA ……………RESPONDENT

To,

The Hon'ble Supreme Court Of India

The Humble memorandum of civil respondent

of the above named respondent

 TABLE OF CONTENTS

List of Abbreviation………………………………………………………………..

Index of Authorities………………………………………………………………..
Statutes………………………………………………….
Cases…………………………………………………….
Commentaries/Digest/Dictionaries……………………...

Statement of Jurisdiction…………………………………………………………...

Statement of Facts………………………………………………………………….

Issues raised………………………………………………………………………...

Summary of Arguments…………………………………………………………….

Arguments Advanced……………………………………………………………….

Prayer……………………………………………………………………………….
 INDEX OF ABBREVIATION

§: Section

§§: Sections

¶: Paragraph

¶¶ : Paragraphs

Anr: Another

LGBT: Lesbian gay bisexual Transgender

Ors: Others

SC: Supreme Court

Sd/-: Signed

Serv. : Service

vrs. : Versus

U.P : Uttar Pradesh

NACO : National Aids Control Organisation

 INDEX OF AUTHORITIES

STATUTES

Indian Penal Code, 1860

The constitution of India

TABLE OF CASES

Naz Foundation v. Government of NCT of Delhi and Others…………………………

Kharak Singh vs The State Of U. P. & Others ………………………………………...

National Legal Ser.Auth vs Union Of India & Ors ……………………………………………………………………

Suresh Kumar Koushal and another Vs NAZ Foundation and Others ……………………………………..

COMMENTARIES, DIGESTS & BOOKS

DICTIONARIES
Compact Oxford Reference Dictionary Ninth Edition
Black’s Law Dictionary Ninth Edition, 2009
Mitra’s Legal & Commercial Dictionary Sixth Edition
 STATEMENT OF JURISDICTION

THE RESPONDENT HAS THE HONOR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF INDIA FOR THE APPEAL IN THE WRIT PETITION
***/2018 FILED U/S 377 of Indian Penal Code,1860.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

 STATEMENT OF FACTS

1. Gender identity is one of the most fundamental aspects of life which refers to a person’s
intrinsic sense of being male, female or transgender or transsexual person.
2. A person’s sex is usually assigned at birth, but a relatively small group of persons may born
with bodies which incorporate both or certain aspects of both male and female physiology.
3. Genital anatomy problems may arise in certain persons, their innate perception of
themselves, is not in conformity with the sex assigned to them at birth and may include pre
and post-operative transsexual persons and also persons who do not choose to undergo or do
not have access to operation and also include persons who cannot undergo successful
operation.
4. Few persons undertake surgical and other procedures to alter their bodies and physical
appearance to acquire gender characteristics of the sex which conform to their perception of
gender, leading to legal and social complications since official record of their gender at birth
is found to be at variance with the assumed gender identity.
5. Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional
attraction to another person. Sexual orientation includes transgender and gender-variant
people with heavy sexual orientation and their sexual orientation may or may not change
during or after gender transmission, which also includes homosexuals, bisexuals,
heterosexuals, asexual etc. Gender identity and sexual orientation, as already indicated, are
different concepts.
6. Each person’s self-defined sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-determination, dignity and freedom
and no one shall be forced to undergo medical procedures, including Sex Reassignment
Surgery (SRS), sterilisation or hormonal therapy, as a requirement for legal recognition of
their gender identity.
7. A minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or
transgenders (LGBT) is not a sustainable basis to deny the right to privacy. The purpose of
elevating certain rights to the stature of guaranteed fundamental rights is to insulate their
exercise from the disdain of majorities, whether legislative or popular.”
8. The guarantee of constitutional rights does not depend upon their exercise being favourably
regarded by majoritarian opinion.
9. Sexual orientation is an essential attribute of privacy. Discrimination against an individual
on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the
individual.
10. Equality demands that the sexual orientation of each individual in society must be protected
on an even platform.
11. The right to privacy and the protection of sexual orientation lie at the core of the
fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution of India, 1950.
12. India’s lesbian, gay, bisexual, and transgender (LGBT) community, which is waiting for a
Supreme Court ruling on Section 377 of the Indian Penal Code (IPC), 1860 which
effectively criminalises same-sex relationships between consenting adults.
13. “Naz Foundation”, a Non-Governmental Organisation (NGO) dedicated for the cause of
protection and promotion of the basic human rights and fundamental freedoms of the LGBT
community, has filed a Public Interest Litigation (PIL) before the Hon’ble Supreme Court of
India urging the judicial conscience of the Apex Judiciary to guarantee the LGBT
community with the fundamental rights as enshrined under Part III of the Constitution of
India, 1950; to declare Section 377, Indian Penal Code (IPC), 1860 as unconstitutional with
regard to criminalising same-sex relationship; and to protect the rights of the LGBT
community.
 STATEMENT OF ISSUES
The following questions are presented before the Hon’ble Supreme Court in the instant matter:

1. Whether the PIL is maintainable in the Supreme court of India or not?

2. Whether Section 377 violates any of the provisions of the Part III(14,15,21) of the
Constitution of India and therefore whether it is valid or not?
3. Whether criminalising same sex relationship under section 377 of India Penal Code, 1860
will be held constitutional or not?
 SUMMARY OF ARGUMENTS

1. Whether the PIL is maintainable in the Supreme court of India or not?

It is humbly submitted that, the appeal filed by the appellant challenging the order passed
by lower court in a case u/s 377 of The Indian Penal Code,1860 before the Hon’ble
Supreme Court of India is not maintainable as under article 14,15 and 21 of The
Constitution Of India.

2. Whether Section 377 violates any of the provisions of the Part III(14,15,21)
of the Constitution of India and therefore whether it is valid or not?
It is humbly submitted that, the Petitioner filed a petition under article 21 of the
Constitution Of India in the Lower Court against the respondent which speaks of Right
To Privacy is not valid. Section 377 of Indian Penal Code,1860 shall not be struck down
and that the section is not violative of Article 21, 14 and 15 of the Indian Constitution.

3. Whether criminalising same sex relationship under section 377 of India

Penal Code, 1860 will be held constitutional or not?
It is humbly submitted that, Section 377 of Indian Penal Code in this case will not be held
constitutional as, it denies a person's dignity and criminalises his or her core identity
solely on account of his or her sexuality and thus violates Article 21 of the Constitution.
As it stands, Section 377 IPC denies a gay person a right to full personhood which is
implicit in notion of life under Article 21 of the Constitution.
 ARGUMENTS ADVANCED
1. Whether the PIL is maintainable in the Supreme court of India or not?
It is humbly submitted that, the appeal filed by the appellant challenging the order passed
by lower court in a case u/s 377 of The Indian Penal Code,1860 before the Hon’ble
Supreme Court of India is not maintainable as under article 14,15 and 21 of The
Constitution Of India.

Gender identity is one of the most-fundamental aspects of life which refers to a

person’s intrinsic sense of being male, female or transgender or transsexual person. A
person’s sex is usually assigned at birth, but a relatively small group of persons may born
with bodies which incorporate both or certain aspects of both male and female
physiology. At times, genital anatomy problems may arise in certain persons, their innate
perception of themselves, is not in conformity with the sex assigned to them at birth and
may include pre and post-operative transsexual persons and also persons who do not
choose to undergo or do not have access to operation and also include persons who
cannot undergo successful operation. Countries, all over the world, including India, are
grappled with the question of attribution of gender to persons who believe that they
belong to the opposite sex. Few persons undertake surgical and other procedures to alter
their bodies and physical appearance to acquire gender characteristics of the sex which
conform to their perception of gender, leading to legal and social complications since
official record of their gender at birth is found to be at variance with the assumed gender
identity. Gender identity refers to each person’s deeply felt internal and individual
experience of gender, which may or may not correspond with the sex assigned at birth,
including the personal sense of the body which may involve a freely chosen, modification
of bodily appearance or functions by medical, surgical or other means and other
expressions of gender, including dress, speech and mannerisms. Gender identity,
therefore, refers to an individual’s self-identification as a man, woman, transgender or
other identified category.

Sexual orientation refers to an individual’s enduring physical, romantic and/or

emotional attraction to another person. Sexual orientation includes transgender and
gender-variant people with heavy sexual orientation and their sexual orientation may or
may not change during or after gender transmission, which also includes homo-sexuals,
bisexuals, heterosexuals, asexual etc. Gender identity and sexual orientation, as already
indicated, are different concepts. Each person’s self-defined sexual orientation and
gender identity is integral to their personality and is one of the most basic aspects of self-
determination, dignity and freedom and no one shall be forced to undergo medical
procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal
recognition of their gender identity.

Indian Law, on the whole, only recognizes the paradigm of binary genders of
male and female, based on a person’s sex assigned by birth, which permits gender
system, including the law relating to marriage, adoption, inheritance, succession and
taxation and welfare legislations. Reference was also made to legislations enacted in
other countries dealing with rights of persons of transgender community. Unfortunately
we have no legislation in this country dealing with the rights of transgender community.
Due to the absence of suitable legislation protecting the rights of the members of the
transgender community, they are facing discrimination in various areas and hence the
necessity to follow the International Conventions to which India is a party and to give
due respect to other non-binding International Conventions and principles. Constitution
makers could not have envisaged that each and every human activity be guided,
controlled, recognized or safeguarded by laws made by the legislature. Article 21 has
been incorporated to safeguard those rights and a constitutional Court cannot be a mute
spectator when those rights are violated, but is expected to safeguard those rights
knowing the pulse and feeling of that community, though a minority, especially when
their rights have gained universal recognition and acceptance.

Article 14 of the Constitution of India 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. Equality includes the full and equal enjoyment of all rights and freedom. Right to
equality has been declared as the basic feature of the Constitution and treatment of equals
as unequals or unequals as equals will be violative of the basic structure of the
Constitution. Article 14 of the Constitution 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 male or female. Hijras/transgender persons who
are neither male/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.

Articles 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. Article 15 states that the State
shall not discriminate against any citizen, inter alia, on the ground of sex, with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly
or partly out of State funds or dedicated to the use of the general public.

The requirement of taking affirmative action for the advancement of any socially
and educationally backward classes of citizens is also provided in this Article.

Article 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. Article 16
(2) of the Constitution of India reads as follows :

“16(2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in respect or,
any employment or office under the State.” Article 16 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.

Articles 15 and 16 sought to prohibit discrimination on the basis of sex,

recognizing that sex discrimination is a historical fact and needs to be addressed.
Constitution makers, it can be gathered, gave emphasis to the fundamental right against
sex discrimination so as to prevent the direct or indirect attitude to treat people
differently, for the reason of not being in conformity with stereotypical generalizations of
binary genders. Both gender and biological attributes constitute distinct components of
sex. Biological characteristics, of course, include genitals, chromosomes and secondary
sexual features, but gender attributes include one’s self image, the deep psychological or
emotional sense of sexual identity and character. The discrimination on the ground of
‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender
identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological
sex of male or female, but intended to include people who consider themselves to be
neither male or female.

Article 21 of the Constitution of India reads as follows:

“21. Protection of life and personal liberty – No person shall be deprived of his life or
personal liberty except according to procedure established by law.” Article 21 is the heart
and soul of the Indian Constitution, which speaks of the rights to life and personal liberty.
Right to life is one of the basic fundamental rights and not even the State has the
authority to violate or take away that right. Article 21 takes all those aspects of life which
go to make a person’s life meaningful. Article 21 protects the dignity of human life, one’s
personal autonomy, one’s 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.

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. Article
21, as already indicated, guarantees the protection of “personal autonomy” of an
individual.

Articles 14, 15, 16, 21, above discussion, would indicate, do not exclude
Transgenders from its ambit, but Indian law on the whole recognize the paradigm of
binary genders of male and female, based on one’s biological sex. As already indicated,
we cannot accept the Corbett principle of “Biological Test”, rather we prefer to follow
 the psyche of the person in determining sex and gender and prefer the “Psychological
Test” instead of “Biological Test”. Binary notion of gender reflects in the Indian Penal
Code, and also in the laws related to marriage, adoption, divorce, inheritance, succession
and other welfare legislations like NAREGA, 2005, etc. Non-recognition of the identity
of Transgenders in the various legislations denies them equal protection of law and they
face wide-spread discrimination.

Here the respondent, supports the cause espoused by the petitioner in this PIL and
avers that Section 377 IPC, which criminalises 'carnal intercourse against the order of the
nature', is an unconstitutional and arbitrary law based on archaic moral and
religious notions of sex only for procreation. It asserts that criminalisation of
adult consensual sex under Section 377 IPC does not serve any beneficial public purpose
or legitimate state interest. On the contrary, according to respondent, Section 377 IPC by
criminalising the aforementioned kinds of sexual acts has created an association of
criminality towards people with same sex desires. It pleads that the continued existence
of this provision on the statute book creates and fosters a climate of fundamental
rights violations of the gay community, to the extent of bolstering their extreme
social ostracism.

Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981):- this Court
held that the right to dignity forms an essential part of our constitutional culture which
seeks to ensure the full development and evolution of persons and includes “expressing
oneself in diverse forms, freely moving about and mixing and comingling with fellow
human beings”.

Ajay Hasia v. Khalid Mujib Sehravardi, (1981) :- It was held that it must, therefore,
now be taken to be well settled that what Article 14 strikes at is arbitrariness because any
action that is arbitrary must necessarily involve negation of equality. The Court made it
explicit that where an Act is arbitrary, it is implicit in it that it is unequal both according
to political logic and constitutional law and is, therefore, violative of Article 14.

2. Whether Section 377 violates any of the provisions of the Part III(14,15,21)
of the Constitution of India and therefore whether it is valid or not?
Section 377 is a relic of the British legal system and in effect it criminalised
same-sex conduct. Consensual sexual activities between two adults of the same sex
should not be regulated by a law as it violates their Fundamental Rights. Section 377 is
abused to brutalize the persons belonging to the gay community. Popular morality, as
distinct from constitutional morality as derived from constitutional values, is based on
shifting notions of right and wrong and as of today, the State is not going by the popular
morality but by its own morality and if there is any type of morality that can pass the test
of compelling state interest, it should be constitutional morality.
Section 377 of the IPC found a place in the Indian Penal Code, 1860, prior to the
enactment of Criminal Tribles Act that criminalized all penile- non-vaginal sexual acts
between persons, including anal sex and oral sex, at a time when transgender persons
were also typically associated with the prescribed sexual practices.
Section 377 criminalises consensual sexual acts of adults in private is violative of
Articles 21, 14 and 15 of the Constitution. While dealing with the question relating to
violation of Article 21, the enlarged scope of the right to life and liberty which also
includes right to protection of one’s dignity, autonomy and privacy,it is held that, The
sphere of privacy allows persons to develop human relations without interference from
the outside community or from the State. The exercise of autonomy enables an individual
to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil
all legitimate goals that he or she may set. In the Indian Constitution, the right to live
with dignity and the right of privacy both are recognised as dimensions of Article 21.
Section 377 IPC denies a person's dignity and criminalises his or her core identity solely
on account of his or her sexuality and thus violates Article 21 of the Constitution. As it
stands, Section 377 IPC denies a gay person a right to full personhood which is implicit
in notion of life under Article 21 of the Constitution.

Suresh Kumar Koushal and another vrs. NAZ Foundation and Others:- It was held
that the Delhi High Court was wrong in its findings and was also wrong in reading down
the section to allow consensual homosexual activities between two adults of the same
sex. Supreme Court answering to the contention laid that the section only lays penalty
against unnatural sexual offences and sexual orientation or gender identity is not covered
under the section thus the section does not apply to LGBT as a class. Supreme Court
further clarified that decisions of other countries favouring consensual sex between same
gender in similar cases cannot be relied in Indian context. Supreme Court in the
judgement vehemently laid that Parliament is the authority which can take decision on
validity or unconstitutionality of section 377.
In the challenge laid to Section 377 of the Indian Penal Code before the Delhi
High Court, one of the grounds of challenge was that the said provision amounted to an
infringement of the right to dignity and privacy. The Delhi High Court, inter alia,
observed that the right to live with dignity and the right of privacy both are recognized as
dimensions of Article 21 of the Constitution of India.

Naz Foundation v. Government of NCT of Delhi and Others :- It was declared that
Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is
violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC
will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal
sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A
person below 18 would be presumed not to be able to consent to a sexual act. This
clarification will hold till, of course, Parliament chooses to amend the law to effectuate
the recommendation of the Law Commission of India in its 172nd Report which we
believe removes a great deal of confusion. Secondly, we clarify that our judgment will
not result in the re-opening of criminal cases involving Section 377 IPC that have already
attained finality.

Anuj Garg v. Hotel Association of India (2008):- The Court held that personal
autonomy includes both the negative right of not to be subject to interference by others
and the positive right of individuals to make decisions about their life, to express
themselves and to choose which activities to take part in. Self-determination of gender is
an integral part of personal autonomy and self-expression and falls within the realm of
personal liberty guaranteed under Article 21 of the Constitution of India.
3. Whether criminalising same sex relationship under section 377 of India
Penal Code, 1860 will be held constitutional or not?
It is humbly submitted that, Section 377 of Indian Penal Code in this case will not be held
constitutional as, it denies a person's dignity and criminalises his or her core identity
solely on account of his or her sexuality and thus violates Article 21 of the Constitution.
As it stands, Section 377 IPC denies a gay person a right to full personhood which is
implicit in notion of life under Article 21 of the Constitution.
According to Union of India, the stated object of Section 377 IPC is to protect
women and children, prevent the spread of HIV/AIDS and enforce societal morality
against homosexuality. It is clear that Section 377 IPC, whatever its present pragmatic
application, was not enacted keeping in mind instances of child sexual abuse or to fill the
lacuna in a rape law. It was based on a conception of sexual morality specific to Victorian
era drawing on notions of carnality and sinfulness. In any way, the legislative object of
protecting women and children has no bearing in regard to consensual sexual acts
between adults in private. The second legislative purpose elucidated is that Section 377
IPC serves the cause of public health by criminalising the homosexual behaviour. NACO
has specifically stated that enforcement of Section 377 IPC adversely contributes to
pushing the infliction underground, make risky sexual practices go unnoticed and
unaddressed. Section 377 IPC thus hampers HIV/AIDS prevention efforts. Lastly, as held
earlier, it is not within the constitutional competence of the State to invade the privacy of
citizens lives or regulate conduct to which the citizen alone is concerned solely on the
basis of public morals. The criminalisation of private sexual relations between consenting
adults absent any evidence of serious harm deems the provision's objective both arbitrary
and unreasonable. The state interest "must be legitimate and relevant" for the legislation
to be non-arbitrary and must be proportionate towards achieving the state interest. If the
objective is irrational, unjust and unfair, necessarily classification will have to be held as
unreasonable. The nature of the provision of Section 377 IPC and its purpose is to
criminalise private conduct of consenting adults which causes no harm to anyone else. It
has no other purpose than to criminalise conduct which fails to conform with the moral or
religious views of a section of society. The discrimination severely affects the rights and
interests of homosexuals and deeply impairs their dignity.
 Thus, consensual sexual activities between two adults of the same sex should not
be regulated by a law as it violates their Fundamental Rights and a person’s choice of
sexual accomplice is no business of the State to regulate on. Section 377 is abused to
brutalize the persons belonging to the gay community. Popular morality, as distinct from
constitutional morality as derived from constitutional values, is based on shifting notions
of right and wrong and as of today, a large chunk of elite population is in favor of the
LGBT rights and hence, this shows that the State is not even going by the popular
morality but by its own morality and if there is any type of morality that can pass the test
of compelling state interest, it should be constitutional morality.
Because of the applicability of the section to certain sexual conduct, all forms of
sexual expression by LGBT people would be violative of section 377. The section only
lays penalty against unnatural sexual offences and sexual orientation or gender identity is
not covered under the section thus the section does not apply to LGBT as a class.
Decisions of other countries favouring consensual sex between same gender in similar
cases cannot be relied in Indian context. It is also laid that Parliament is the authority
which can take decision on validity or unconstitutionality of section 377.

Kharak Singh vrs. The State of U.P., (1964) :- In this case, The Supreme Court quoted
that by the term “life”, as here used something more is meant than mere animal existence.
The inhabitation against its deprivation extend to all those limbs and faculties by which
life is been enjoyed. This provision equally prohibits the mutilation of the body by
amputation of an armour leg or the pulling out of an eye of a destruction of any other
organ of the body through which the soul communicates with the other world.
For the first time, in the case of kharak singh vrs. State of U.P, Police regulation
constituted an infringement of any of the fundamental rights guarented by part III of The
Constitution. The regulation of 236(b) which permitted surveillance by “domiciliary
visits at night” , was held to be in violation of article 21. A seven judge bench held that
the meaning of expressions, “life” and “personal liberty” in article 21 were considered by
this court in the kharak singh’s case. Although the majority found that the constitution
contained no explicit guatentee of “right to privacy”.
 PRAYER
In view of the above facts and circumstances of the case, issues raised, arguments advanced,
authorities cited, it is most humbly prayed before this Hon’ble Court that, this Hon’ble Court
may graciously be pleased to:-

1. Dismiss the writ petition

2. In the alternative declare and adjudge:
(a) That the respondents have not violated the fundamental rights of the LGBT
community
(b) The respondent are not liable for violating same-sex relationships.

And
;

And For this act of kindness the respondent as in duty bound shall ever pray.

Place: Delhi S/d-

Date: 10/02/2018 Moot counsel for the respondent