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Review
1. Whether the Supreme Court of Aeloria have jurisdiction to try this case? (1) WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE (2) BEFORE THIS HON’BLE COURT. (3) WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE (4) BEFORE THIS HON’BLE COURT. (5) WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE (6) BEFORE THIS HON’BLE COURT. (7) WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE (8) BEFORE THIS HON’BLE COU It is humbly submitted by the petitioner before the Hon’ble Supreme Court of Aeloria has jurisdiction to try this case and adjudicate the matter as there is a violation of non-negotiable Fundamental Rights such as the Right to Life and Personal Liberty (Article 21), the Right to Equality (Article 14), the Right to Freedom of Speech (Article 19(1)a), of the Constitution of Aeloria. It is further submitted that the instant case is of grave public concern as it is regarding the rights of married women, so the petitioner humbly submits that the Hon’ble Supreme Court also grants special leave under Art. 136 of the constitution of Aeloria, and the petition filed by the petitioner is about constitutional validity. The role of the Supreme Court is expanding beyond the confines of dispute settling and law-making. The Supreme Court is a problem- solver in the nebulous areas^1. The Hon’ble Supreme Court has the duty to apply the existing law in a form more conducive to the independence of the judiciary^2. It is contended that the current appeal is maintainable before the Supreme Court on these broad grounds. The Petitioner, in the instant matters, humbly submits that the petition is the main table because there is an infringement of fundamental rights on behalf of the state towards the Petitioner. (1.1) That this petition is maintainable under Article 136 because there exists a substantial question of law regarding the constitutionality of exp 2 of 375 of APC. (1.2) That there exists the question of facts in exceptional circumstances. (1.3) Existing alternative remedies are not barred from the instant petitioner. (1.4) 1.1. The Petitioner, in the instant matters, humbly submits that the petition is maintainable because there is an infringement of fundamental rights on behalf of the state towards the Petitioner. It is humbly submitted to the Hon’ble Supreme Court of Aeloria that the petition is maintainable as the SC is the apex court of law in Aeloria and protector and safeguards the fundamental rights of its citizens in this instance, the petitioner’s fundamental rights are infringed, and in the instant petition there is a Gross Violation of Fundamental Rights as of Articles 14, 19, 21; therefore, the writ petition filed by the petitioner and the special leave petition is maintainable in the Hon’ble Supreme Court of Aeloria is maintainable under article 32 and 136 of constitution of Aeloria. "Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Article 32 and 136 of the Constitution, I am of the (^1) JUSTICE M L SINGHAL, SOHONI’S CODE OF CRIMINAL PROCEDURE, Vol. 4, 1115 (LexisNexis, 21st ed., 2015). (^2) K. Veeraswami v. Union of India, (1991) 3 SCC 655
opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done.”^3
- In the case of Golaknath v. State of Punjab^4 , the Hon’ble Supreme Court of Aeloria ruled that the state cannot abridge fundamental rights without following due process. This case underscores the importance of fundamental rights and the duty of the court to protect them.
- In Keshavananda Bharati v. State of Kerala^5 , the Hon’ble Supreme Court of Aeloria considered a case where the petitioner argued that certain constitutional amendments violated their fundamental rights. The court's decision reinforced the supremacy of fundamental rights in the Indian Constitution.
- The case of Maneka Gandhi v. Union of India^6. In this case, the Supreme Court held that the right to travel abroad was encompassed within the Right to Life and Personal Liberty (Article 21) and that the state could not arbitrarily restrict this right. This case reaffirmed the importance of fundamental rights and their protection by the Supreme Court.
- In Navtej Singh Johar v. Union of India , the Supreme Court of India decriminalized homosexuality, holding that Section 377 of the Indian Penal Code violated the fundamental rights of LGBTQ+ individuals. This landmark case highlighted the court's commitment to protecting fundamental rights, including the right to equality and personal liberty.
- In State of West Bengal v. Committee for Protection of Democratic Rights , the Supreme Court of India invoked Article 136 to address extrajudicial killings in the state. The court emphasized safeguarding the rule of law and ensuring that state actions comply with fundamental rights. From all these cases, the Supreme Court considered that fundamental rights can’t be infringed, and the court has safeguarded the rights 1.2. That this petition is maintainable under Article 136 because there exists a substantial question of law regarding the constitutionality of exp 2 of 375 of APC. It is humbly submitted to the Hon’ble Supreme Court of Aeloria that the petition which questions the constitutionality of a law is challenged on the ground that it infringes a fundamental right, the Court must consider the ‘direct and inevitable effect’ of such law, referred to as the ‘test of direct and inevitable consequence. Exception II of Section 375 violates Articles 14 and 15 of the Constitution^7. Equality of treatment under Article 14 is an objective test, the basic principle being that law must operate equally on all persons under like circumstances. Judicial decisions read the doctrine of classification into Article 14 and Article 15(3)^8. This doctrine has been described as a “subsidiary rule” evolved by courts to give practical content to the Article. The “positive” aspect of Article 14 is that if an action is (^3) Union Carbide Corporation v. Union of India 1992 AIR 248, 1991 SCR Supl. (1) 251 (^4) AIR 1967 SC 1643. (^5) AIR 1973 SC 1461. (^6) AIR 1978 SC 597. (^7) maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597; (1978) 1 SCC 248; Indian Hotel and Restaurant Association (AHAR). State of Maharashtra, 2019 SCC OnLine SC 41 (^8) M. Nagaraj v. Union of India, (2006) 8 SCC 212
In People's Union for Democratic Rights v. Police Commissioner , the Supreme Court of Aeloria addressed a case involving alleged police atrocities. The court exercised its jurisdiction to investigate the facts and provide relief in exceptional human rights violations. In Bilkis Bano v. State of Gujarat , the Supreme Court intervened in a case involving a brutal gangrape and murder during the Gujarat riots. The court emphasized the exceptional nature of the case and its responsibility to deliver justice in the face of grave human rights violations. 1.4. Existing alternative remedies are not barred from the instant petitioner. It is humbly submitted to the Hon’ble Supreme Court of Aeloria that the petition has not barred any existing alternative remedies as the petitioner has approached the high court then only due to not satisfied with the verdict of the HC through SPL approached Hon’ble Supreme Court of Aeloria and also due to the infringement of fundamental rights especially married women’s as in a case concerning the illegal detention of a person, where the court exercised its jurisdiction under Article 32 (similar to Article 136) to protect the individual's fundamental rights, even though alternative remedies were available.^10 The court held that the case involved a substantial question of law and was of public importance, justifying its intervention despite the availability of alternative remedies.^11 In Bachan Singh v. State of Punjab , the Supreme Court of Aeloria heard a case involving the constitutional validity of the death penalty, even though alternative remedies existed. The court considered it a matter of exceptional importance and exercised its jurisdiction under Article 136 to address the issue. In Common Cause v. Union of India , the Supreme Court of Aeloria entertained a public interest litigation (PIL) related to the allocation of coal blocks despite the existence of alternative remedies. The court stressed that PILs could be engaged when substantial public interest concerns exist, even if alternative remedies exist. In I.R. Coelho v. State of Tamil Nadu , the Supreme Court of Aeloria heard a case related to the constitutional validity of land acquisition laws, even though alternative remedies were available. The court emphasized its role in upholding constitutional principles and ensuring justice. (^10) S.P. Sampath Kumar v. Union of India (^11) Rameshwar Prasad v. Union of India
Issue- Whether the Exception-2 of Sec 375 of Aeloria Penal Code, 1860 is violative of Fundamental rights? Whether Exception-2 of Sec 375 of APC is violative of the Fundamental Rights Whether Exception-2 of Sec 375 of APC violates Art 14 of the Aelorian Constitution Whether Exception-2 of Sec 375 of APC violates Art 19 of the Aelorian Constitution Whether Exception-2 of Sec 375 of APC violates Art 21 of the Aelorian Constitution Whether mere marriage amounts to an implied consent to Sexual activity
1. Whether the Exception-2 of Sec 375 of Aeloria Penal Code, 1860 is, violative of Fundamental rights? [ ¶ 1] It is humbly submitted before the SC of Aeloria that the Exception-2 of Sec 375 of APC is violative of the non-negotiable Fundamental Rights which are provided under the Part III of the Aelorian Constitution. The same shall be established in a twofold manner, i.e., firstly, the exception infringes the Fundamental Rights of Article 14, Article 19 and Article 21 of the Constitution (1.1), and Secondly, a mere marriage does not amount to an implied consent to sexual activity (1.2). 1.1 Whether Exception-2 of Sec 375 of APC is violative of the Fundamental Rights [¶2] It is humbly submitted before the Supreme Court of Aeloria that the Exception- of Sec 375 of APC is violative and infringes the non-negotiable Fundamental Rights which are provided under the Part III of the Aelorian Constitution. [¶3] Sec 375 of the APC provides with the offense of Rape and its various forms, along with the punishments for committing such an offense. Sec 375 of APC defines Rape as the penile penetration of the vagina, anus, urethra, or mouth of a woman without her consent. It also includes non-consensual penetration of any object or any part of the body into the vagina, anus, urethra, or mouth of a woman. Sec 375 of APC establishes various circumstances under which an act is legally categorized as rape. These instances encompass situations where the act transpires against the explicit will of the woman, occurs without her voluntary consent, involves the acquiring of her consent through coercion or intimidation involving the threat of bodily harm, takes place when the woman is incapable of granting consent due to mental
group while also being absent in those outside the group. It is humbly submitted that there is no apparent and reasonable distinguishing element when it comes to categorizing rape victims based on their marital status. [¶12] It is submitted that the very absence of an apparent and reasonable distinction of rape victims on the basis of marital status raises the question of the legitimacy of such classification, as it fails to identify any inherent qualities or characteristics that are universally shared by married victims of sexual offenses but are conspicuously lacking in unmarried victims. This raises issues regarding the constitutionality and effectiveness of such differentiation within the society and the legal framework. [¶13] It is submitted that the classification lacks a reasonable nexus (or) connection with the object that is sought to be achieved. As the fundamental aim is to protect the dignity of women and punish criminals, but Exception-2 disrupts this aim in two notable ways. Firstly , it creates a separate category of married rape victims who are denied legal protection, contrary to the objective of safeguarding women's dignity. Secondly , it grants husbands a legal license to continue their wrongful acts within marriage, undermining both the dignity of victims and the punitive purpose of the law. [¶14] It is submitted that in the case of the State of Karnataka v. Krishnappa, where it was held that sexual violence, apart from being a dehumanizing act, is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honor and offends her self-esteem and dignity. It degrades and humiliates the victims. [¶15] It is humbly submitted that in the case of Independent Thought v. Union of India , the Apex Court agreed with the petitioner’s argument that exception-2 did not create a reasonable classification and was violative of Art 14 and held that if the girl is below 18 years of age, then the offence of Section 375 is attracted, notwithstanding the fact that there is a relationship of husband and wife. It was also held in this case that, Constitutionally, a female is equal to a male, and no statute can be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished. And the Husband will be held liable. [ ¶ 16] The petitioner humbly submits that Exception-2 of Sec 375 of APC is violative of Art 14 of the Aeloria Constitution as it creates an unreasonable classification and it does not protect the dignity of women. 1.1.b Whether Exception-2 of Sec 375 of APC violates Art 19 of the Aeloria n Constitution [ ¶ 17] It is humbly submitted before the Hon’ble Supreme Court that exception-2 of Sec 375 of APC, which provides that Sexual intercourse of acts by a man to his lawfully wedded wife who is not under the age of fifteen, is not Rape, is violative to the Right to Equality which is provided under Art 19 of the Aeloria Constitution. [¶18] It is submitted that Exception-2 to Sec 375, IPC is violative of Art 19 of the Aeloria n Constitution because, firstly, married women have the fundamental right to give consent to sexual intercourse under Art 19(1)(a) and secondly, the restrictions imposed under Art 19(2).
[¶19] It is submitted that the freedom of an individual to engage in sexual activity is an expression of one's sexual preference. The freedom of an individual to decide on one's own consensual adult relationships without the interference of the State is a fundamental human right. [¶20] It is submitted that in the case of Joseph Shine vs. Union of India^15 , the Supreme Court held that the law was archaic, arbitrary, and paternalistic and infringed upon a woman's autonomy, dignity, and privacy as Sexual activity is an expression of one's sexual preference. [¶21] In addition, a woman, irrespective of her marital status, has the right to decide upon her preference of entering into a sexual activity with her husband. Further, the act of sexual intercourse must be contemporaneous with the consent. Thus, a woman has a fundamental right to either to give consent or refuse to give consent to engage in sexual activity with her husband. [¶22] It is submitted that, secondly, any restriction imposed on the exercise of right under Art. 19(1)(a) would be unconstitutional if it does not fall under the four corners of reasonable restriction under Art 19(2). [¶23] The petitioner submits that Exception-2, which provides a legal sanction to the husband to rape his wife, within marriage, was enforced to protect the Victorian notions of sexual morality, which considered a wife as a chattel of her husband, and subsequently, the wife could not revoke her consent to sexual intercourse. Hence, the restriction is inconsistent with the principles of free consent and thus not covered by the grounds of morality under Art. 19(2). [¶24] It is submitted that in the case of State of Andhra Pradesh v. Mc Dowell^16 , it was held that an enactment, if challenged as violative of any of the fundamental rights under Art. 19(1)(a) could be struck down if the restriction imposed by it is not saved by Art 19(2). [¶25] It is humbly submitted by the petitioner that Exception-2 is unconstitutional to Art 19(1)(a) as the aforementioned restrictions do not fall under any grounds prescribed under Art 19(2) of the Aelorian Constitution. 1.1.c Whether Exception-2 of Sec 375 of APC violates Art 21 of the Aeloria n Constitution [¶26] It is humbly submitted by the Petitioner before the Hon’ble Supreme Court that Exception-2 of Sec 375 of APC is violative of the non-negotiable rights vested under Art 21, which is the basic structure of the Aelorian Constitution. It is submitted that it deprives married women of the right to life and personal liberty vested under Art 21 of the Constitution as it firstly violates the right to privacy of married women and, secondly , violates the right to reproductive choices of married women. [¶27] It is humbly submitted that the right to privacy is a fundamental right under the right to life and personal liberty guaranteed under Art 21 of the Aelorian Constitution. The right to privacy guarantees an individual the right to retain the integrity of the body and preserve their private space, which includes the right to sexual autonomy and right to choose sexual activity. (^15) Joseph Shine v. Union of India, (2019) 3 SCC 39 (^16) State of Andhra Pradesh v. Mc. Dowell & Co., (1996) 3 SCC 709
drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. [¶36] It is also submitted that implied consent can create an environment where one spouse may feel obligated or coerced into engaging in sexual activity with the other spouse against their will. [¶37] It is humbly submitted before the Supreme Court that a mere marriage would not amount to implied consent for sexual activity. 4 issue Does there exist a prima facie case under sections 504, 505 and 153A of the Aeloria Penal Code, 1860 against Ms. Jessica? It is humbly contended before the Hon’ble Supreme Court of Aeloria that there exist no prima facie case under Sections 504, 505 and 153A of the Aelorian Penal Code. Firstly, Section 504 of the Aeloria Penal Code deals with the Intentional insult with intent to provoke breach of the peace. The question before the Hon’ble court now lies whether Ms. Jessica can be held liable under this Section. The intention of this section is to stop people from using abusive and provocative language intentionally leading to provocation, but it is not necessary for it to have an actual disturbance of peace. For the same, the essentials of this section must be examined: o The accused must intentionally insult a person thereby leading to provocation o The insult must be to provocate the person insulted o The accused must have the intention to break public peace or cause provocation
1. Intentional insult leading to provocation:
a. It humbly submitted to the Hon’ble court that there was no intentional “insult to the victim” or usage of any abusive language in the present case. In democratic countries like Aeloria, every citizen is entitled to participate in peaceful protests that are not illegal or incite violence^21. b. Ms. Jessica has consistently advocated for gender equality and women's rights through peaceful means. Her intent has never been to incite violence or public disturbance but to raise awareness about a pressing issue. This is also covered under the Constitution of Aeloria, under article 19 (1) (b)^22 , which gives her the right to assemble peacefully without any arms. As held in the case of Himat Lal K. Shah Vs. Commissioner Of Police, Ahmedabad & Anr^23 it was held that the State could only make regulations to aid the right of assembly of citizens. c. Additionally, Ms. Jessica merely spoke about women’s rights and expressed her fundamental right of Freedom of speech and expression as covered under article 19 (1) (a) of the Constitution of Aeloria^24. Ms Jessica’s protest involved advocating her opinions on an existing issue in the Republic Aeloria. d. Additionally, it was never Ms. Jessica’s intention to provoke any community or group, or to insult them. Her speeches were made to bring about awareness and make the public aware of the government’s policies.
2. Protection of marginalised groups a. In the Constitution of Aeloria, the principles of justice, equality, and fraternity are embedded. This defines the objectives of the Aelorian Constitution. These terms grant the citizens of Aeloria social, political and economic justice along with the liberty of thought and expression^25. b. Inclusion of the term “equality” itself proves that the citizens are given equal opportunity and equal status. Republic of Aeloria is revered for its devotion and commitment towards not negotiating the Fundamental rights of their citizens, its democratic values and iron-clad commitment towards constitutionalism^26. (^21) Article 19(1)(b), Constitution of India (^22) Constitution of India (^23) HIMAT LAL K. SHAH Vs. COMMISSIONER OF POLICE, AHMEDABAD & ANR. LNIND 1972 SC 438 (^24) Constitution of India (^25) Proposition, paragraph 1 (^26) Proposition, paragraph 1
Inorder to constitute an offence under Section 505 of the Aelorian Penal Code, the following essentials must be fulfilled: The accused must have published, made or circulated a statement, rumour or report With the intent to: cause, or was likely to cause fear or alarm to the public (or to a section of the public) incite a class, community or person to commit an offence against another class or community create feelings of enmity or ill will between different: o religions o races o language or religious groups o castes or communities on the same grounds o Thereby a person was induced to commit an offence against the State or Public tranquillity. o The statements made by Ms. Jessica against the Government do not satisfy the essentials of the above mentioned section when it is read with Article 19(1) and (2) of the Aelorian Constitution, which grant her the right to Freedom of Speech and Expression.^30 b. In the case of Amish Devgan v. Union of India, it was held that if the speaker does not actively incite the descent into public disorder, and is merely pointing out why a certain person or group is behaving a in a particular manner, what are their demands and their point of view, or when the speaker interviews such e person or group, it would be a passive delivery of facts and opinions which may not amount to promotion. (Para 103)^31. In the instant case, it is humbly submitted that Ms. Jessica was merely expressing her dissatisfaction with certain practices in the country and was requesting action for the same.
- The Preamble of the Constitution (^30) Constitution of India (^31) Amish Devgan v. Union of India, (2021) 1 SCC
a. As held in the case of Shreya Singhal v. Union of India, (2015)^32 , the Preamble of the Constitution of Aeloria inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that Aeloria is a democratic republic. When it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under the constitutional scheme. The importance of freedom of speech and expression both from the point of view of the liberty of the individual and from the point of view of the democratic form of government has been recognised by the Supreme Court in its various judgments. Freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved. It lies at the foundation of all democratic organisations. Public criticism is essential to the working of its institutions. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a precondition for meaningful governance, the culture of open dialogue is generally of great societal importance. The ultimate truth is evolved by "free trade in ideas" in a competitive "marketplace of ideas".
6. Sections 153A and 505 a. It is necessary under s. 505 that there should be a publication of words or representation intended for promoting feelings of enmity or hatred, but this is not necessary under s. 153A. Inciting of the feelings of one group merely without any reference to another group does not attract s. 153A or s 505. The court referred to the decision in Balwant Singh v. State of Punjab^33 where the ruling was that mens rea is a necessary ingredient for the offence under s. 153A. b. Its is humbly submitted to the court that in the present case the Petitioner had no intent to incite any feelings of hatred, or promote any feelings of enemity between any given groups at any given point of time. (^32) Shreya Singhal v. Union of India, (2015) 5 SCC 1 (^33) (1995) 3 SCC 214 : 1995 AIR SCW 2803 : AIR 1995 SC 1785
