























Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
It is a good material for moot preparation
Typology: Assignments
1 / 31
This page cannot be seen from the preview
Don't miss anything!
On special offer
MEMORANDUM ON BEHALF OF RESPONDENTS F. THAT THE PRESUMPTION OF CONSTITUTIONALITY FAVOURS LEGISLATION 9 III. THAT THE LEGAL APPLICATION OF § 377 IS PERFECTLY VALID & JUST
1. Application of Section 377 IPC 10 2. Argument on the broader contour of § 377 11 B. THAT § 377 IS NEEDED AND DEFINED IN TERMS OF LEGITIMATE STATE INTEREST
1. Applying the Doctrine of Severability 11 2. Reading down the law to make it compatible 12 C. THAT § 377 HAS PROPORTIONALITY WHICH ENSURES A RATIONAL NEXUS BETWEEN THE OBJECTS AND THE MEANS ADOPTED TO ACHIEVE THEM DEFINED IN TERMS OF LEGITIMATE STATE INTEREST
iii
MEMORANDUM ON BEHALF OF RESPONDENTS LIST OF ABBREVIATION LIST OF ABBREVIATION § : Section AIR : All India Reporter Anr. : Another A.P : Andhra Pradesh Art : Article CrPC : Code of Criminal Procedure, 1973 Ch. : Chapter Const. : Constitution of India Ed. : Edition Govt. : Government HIV/AIDS : Human Immuno Deficiency Virus / Acquired Immuno Deficiency Syndrome HRGs : High-Risk Groups IPC : Indian Penal Code, 1860 LGBT : Lesbian Gay Bisexual Transgender Ltd. : Limited Ors. : Others RI : Rigorous Imprisonment SCC : Supreme Court Cases SC : Supreme Court SLP : Special Leave Petition U.P. : Uttar Pradesh Vol. : Volume v. : Versus W.B. : West Bengal iv
MEMORANDUM ON BEHALF OF RESPONDENTS
MEMORANDUM ON BEHALF OF RESPONDENTS STATEMENT OF JURISDICTION STATEMENT OF JURISDICTION The Hon’ble Supreme Court of Lexton has jurisdiction to hear the instant matter under Article 136 of the Constitution of Lexton. Article 136 of the Constitution reads as follows: “136. Special leave to appeal by the Supreme Court - (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.” x
MEMORANDUM ON BEHALF OF RESPONDENTS STATEMENT OF ISSUESSTATEMENT OF ISSUES I. WHETHER THE SPECIAL LEAVE PETITION FILED BY ROB BEFORE SUPREME COURT IS MAINTAINABLE? II. WHETHER § 377 VIOLATES FUNDAMENTAL RIGHTS GUARANTEED BY THE CONSTITUTION OF THE STATE OF LEXTON? III. WHETHER THE LEGAL APPLICATION OF § 377 IS VALID & JUST? IV. WHETHER AN APPROPRIATE PUNISHMENT HAS BEEN METED OUT TO THE ACCUSED? xii
MEMORANDUM ON BEHALF OF RESPONDENTS SUMMARY OF ARGUMENTSSUMMARY OF ARGUMENTS I. THAT THE SPECIAL LEAVE PETITION FILED WITH THE SUPREME COURT OF LEXTON IS NOT MAINTAINABLE Present set of facts do not show sufficient causes to allow appeal by special leave. This extraordinary power is to be used cautiously in exceptional circumstance where the occurred injustice jolted the conscience of the court. However, this case doesn’t rise to level. No injustice has occurred upon the petitioner and both Trial court and High Court have scrutinized the claims of petitioner and rendered the due justice. 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. Even once admitted petition might be rejected if the grounds to approach the Supreme Court are infirm. Hence, Hon’ble Supreme Court must reject the present petition. II. THAT § 377 OF THE INDIAN PENAL CODE IS CONSTITUTIONAL WITH RESPECT TO THE FUNDAMENTAL RIGHTS IN CH.3 OF THE CONSTITUTION In state of Lexton, there are fundamental rights guaranteed under the constitution but those rights are not absolute in nature. Each of these rights can be taken away with a procedure established by Law. Legislature with due regard to constitutional limits may impose reasonable restrictions on enjoyment of fundamental rights. Right to privacy like other fundamental rights is subject to restrictions on grounds of public morality, national security interest and others. Art. 14 does not bar state to create unequal categories if it has justified rationale in the lager interest of society. § 377 does not target sexual orientation but penalise only act of buggery, sodomy i.e. unnatural offences. Presumption of constitutionality favours legislation, and mere apprehension of misuse is not a sound ground for declaring an enactment unconstitutional. There are other enactments which are based on public morality like bar on termination of pregnancy, prohibition on child pornography, control on substance abuse and others. Therefore § 377 is an extension of curtailing abhorred acts. Therefore it would be erroneous to contend that § 377 is unconstitutional. xiii
MEMORANDUM ON BEHALF OF RESPONDENT ARGUMENTS ADVANCEDARGUMENTS ADVANCED I. THAT THE SPECIAL LEAVE PETITION FILED WITH THE SUPREME COURT OF LEXTON IS NOT MAINTAINABLE
1. Special leave petition Jurisdiction of the Supreme Court flows from Article 136 empowers the Supreme Court to grant in discretion Special leave to Appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.^1. The exercise of writ jurisdiction by the Supreme Court is discretionary in nature.^2 It is submitted that the writ petition is not maintainable on primarily three grounds: That there is no miscarriage of justice and the order of high court is not misconceived or perverse [A] ; That there exist no exceptional circumstances that warrant special leave to this court [B] ; A. THAT THERE IS NO MISCARRIAGE OF JUSTICE AND THE ORDER OF THE HIGH COURT IS NOT MISCONCEIVED OR PERVERSE 2. When Supreme Court exercises its discretionary jurisdiction under Art 136^3 of the Constitution it is in order to ensure that there is no miscarriage of justice, if finding of acquittal by high court is found to be misconceived and perverse, this court can quash such order of acquittal under Art. 136 of the Constitution.^4 The facts of the present case don’t lead to such conclusion, trail court convicted Joseph to full extent of law (u/s 325)^5. “Where findings of facts recorded by the trial court are affirmed by the high court in appeal, the Supreme Court will be reluctant to interfere with such findings in exercise of jurisdiction under Art. 136 of the constitution unless there are very strong reasons to do so.”^6 Those reasons are not stated by petitioner except asking for more stringent punishment onus lies on the petitioner to prove such facts. 1 INDIA CONST. Art. 136; Subedar v. State of U.P. AIR 1971 SC 125. 2 D.D BASU, A COMMENTARY ON THE CONSTITUTION OF INDIA, (8th Edn., 2010). 3 136. Special leave to appeal by the Supreme Court - (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces 4 State of Rajasthan v. Islam AIR 2011 SC 2317; S.B. minerals v. MSLP Ltd. AIR 2010 SC 1137 5 INDIAN PENAL CODE, 1860 6 Saradamani Kandappan v. S. Rajalaxmi AIR 2011 SC 3234; Union of India v. Era Educational Trust , AIR 2000 SC 1573.; DCM v. Union of India, AIR 1987 SC 2414 1
MEMORANDUM ON BEHALF OF RESPONDENT
3. Facts of the case before us militate against the reasons of filing special leave petition. Joseph attempted to emasculate Rob that led to grievous hurt to Rob, against which Rob approached the trial court and trial court meted out punishment under Sec.325 of IPC extended up to the maximum punishment under said section by awarding imprisonment for a term of seven years and Rs. 50000 in fine. 4. In Dalip Singh v State of Punjab^7 the SC clarified the context in which the court could interfere with the sentence imposed by the lower court. Thus, when discretion has been exercised along with the accepted juducial lines, an appellate court should not interfere to the detriment of an accused except for very strong reasons, which must be disclosed on the fact of the judgment. In Bed Raj v State of Uttar Pradesh,^8 this court stated that, in the matter of enhancement, there should not be interference when the sentence imposes substantial sentence. Interference will be warranted only when the sentence is manifestly inadequate. 5. Though Article 136 is conceived in widest terms, the practice of the Supreme Court is not to interfere on questions of fact except in exceptional cases when the finding is such that it shocks the conscience of the court.^9 A pure finding of facts based on appreciation of evidence does not call for interference in exercise of power under Art. 136 of the Constitution.^10 It is very important to notice this observation “there is no tangible justification to allow the appellants to raise new plea for the first time, the determination of which would require detailed investigation into facts”.^11 The Court would re-appreciate evidence only to find out whether there has been any illegality , material irregularity or miscarriage of justice.^12 B. THAT THERE EXIST NO EXCEPTIONAL CIRCUMSTANCES THAT WARRANT SPECIAL LEAVE TO THIS COURT 6. In criminal cases the Supreme Court will not interfere in under Art. 136 unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.^13 This wide power is not, however, to be exercised by the Supreme Court so as to entertain an appeal in any case where no appeal is otherwise provided by the law or the Constitution. It is a special power which is to be exercised under 7 AIR 1953 SC 364; Narsingh v State of Uttar Pradesh AIR 1954 SC 457 8 AIR 1955 SC 778 9 Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492 10 Pramod Buildings & Developers(p) Ltd. v. Shanta Chopra AIR 2011 SC 1424 11 Abdul Khader v. Tarabai (2011) 6 SCC 529 12 Amitava Banerjee v.State of W.B. AIR 2011 SC 2913 13 Pritam Singh v. State, AIR 1950 SC 169S 2
MEMORANDUM ON BEHALF OF RESPONDENT II. THAT SECTION 377 OF IPC IS CONSTITUTIONAL WITH RESPECT TO THE FUNDAMENTAL RIGHTS IN CHAPTER-III OF THE CONSTITUTION
9. The state of Lexton aims to protect right of homosexuals but there rights are not recognized , it guarantees privacy as a fundamental right. Petitioner Rob moved to this court to declare § 377 of IPC unconstitutional. It is submitted that these contentions do not rise to the level that is required to declare § 377 unconstitutional - that the right to privacy is not absolute [A]; that Art. 14 does not prohibit state to differentiate on intelligible differential and reasonable rationale [B] ; § 377 is not arbitrary [C] ; § 377 is gender neutral therefore does not violate Art.15 [D] ; Art.21 empower state to take away liberty subject to procedure established by law [E] ; presumption of constitutionality favours legislation [F] ; A. THAT THE RIGHT TO PRIVACY GUARANTEED IN THE CONSTITUTION OF STATE OF LEXTON NOT ABSOLUTE 10. In 2016 nine judge constitution bench put this in conclusion “Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Art. 21^22 , privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Art. 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair , just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Art. 21. An invasion of life or personal liberty must meet the three-fold requirement of i) legality , which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim ; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.”^23 As one of the basic Human Rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.^24 How § 377 deals with these requirements are covered in argument 22 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 23 Justice K.S.Puttaswamy (Retd.) & Anr. v Union of India & Ors. (2017) 10 SCC 1 24 Mr. X v. Hospital Z (1998) 8 SCC 296. 4
MEMORANDUM ON BEHALF OF RESPONDENT for Issue No. III.^25 Above observation is ratio deciendi of the case hence is binding by application of stare decisis. B. THAT SECTION 377 DOES NOT VIOLATE THE EQUAL PROTECTION DOCTRINE ENSHRINED IN THE CONSTITUTION
11. § 377 IPC does not violate the Equal Protection clause enshrined under Art. 14^26 [which ensures fairness^27 , and guarantees against arbitrariness,^28 It provides that every action of the government must be informed by reasons and guided by public interest^29 ] of the Constitution and as such the aforementioned have been enacted to protect the interests of sexual minorities. Mere discrimination or inequality of treatment does not amount to discrimination within the ambit of Article 14.^30 For an act not to violate Art. 14, there must not be any substantive unreasonableness^31 in it, it should not be manifestly arbitrary^32 and it should fulfil the following two conditions: a) Intelligible differentia which distinguishes persons or things that are grouped together from other left out in the group^33 This is done by examining the purpose and policy of the act, which can be ascertained from its title, preamble^34 and provisions.^35 b) Rational nexus^36 that connects the object sought to be achieved by the act with the intelligible differentia ascertained in (a).^37 1. The Classification is founded on an Intelligible Differentia 12. Art. 14 forbids class legislation; it does not forbid reasonable classification of persons by the Legislature for specific ends. Classification in such a case should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from others left out of it.^38 25 See page 10 26 14. 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 India. 27 Delhi Transport Corporation v. DTC Mazdoor Congress , AIR 1991 SC 101; Mahesh Chandra v. Regional Manager, U.P. Financial Corpn , AIR 1993 SC 935. 28 Express Newspapers Pvt. Ltd. v. Union of India (UOI) and Ors. , AIR 1986 SC 872; Netai Bag v. State of West Bengal , AIR 2000 SC 3313. 29 MS Bhut Educational Trust v. State of Gujarat , AIR 2000 Guj 160; LIC v. Consumer Education and Research Centre , AIR 1995 SC 1811 30 D.D. BASU, SHORTER CONSTITUTION OF INDIA, 62, (13 th ed., vol. 1, 2001). 31 Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board and Ors. , AIR 2007 SC 2276. 32 Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group , AIR 2006 SC 1489. 33 Pathumma v. State of Kerala , AIR 1979 SC 771. 34 Kausha ON v. Union of India , AIR 1978 SC 1457. 35 P. B. Roy v. Union of India , AIR 1972 SC 908. 36 Kedar Nath Bajoria v. State of W.B , AIR 1953 SC 404. 37 Hanif v. State of Bihar , AIR 1958 SC 731. 38 Laxmi Khandsari v. State of Uttar Pradesh , AIR 1981 SC 873 5