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1st ITM NATIONAL MOOT COURT COMPETITION ITMURLAW1C0218L

TABLE OF CONTENTS

S. NO PARTICULARS PAGE. NO.


1. TABLE OF ABBREVIATIONS III-IV

2. INDEX OF AUTHORITIES V-VII


3. STATEMENT OF JURISDICTION VIII
4. STATEMENT OF FACTS IX-XII
5. STATEMENT OF ISSUES XII
6. SUMMARY OF ARGUMENTS XIII-XIV
7. ARGUMENTS ADVANCED 1-15
[1].WHETHER THE SPECIAL LEAVE PETITION
BROUGHT BEFORE THIS COURT IS MAINTAINABLE
OR NOT.
[1.1] That special leave petition is palpably absurd.
[1.2] That no grave injustice has been done in this case.

[1.3] That no substantial question of law exists.

[1.4] That the petitioner violates the rule of equity.

[2]. WHETHER THE QUANTUM OF SENTENCE AND


FINE AWARDED TO MR. JOSEPH SHOULD BE
ENHANCED OR NOT.

[2.1]. That the emasculation has not taken place.

[2.2]. That magnitude of offence does not permit enhancement of


punishment.

[2.3].That provocation was there and Mr. Joseph’s act was


Impulsive.

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[2.4] That Mr. Robb himself is guilty of offence under section 377.

[3]. WHETHER SECTION 377 VIOLATES


FUNDAMENTAL RIGHTS GARUNTEED UNDER
CONSTITUTION OR NOT.
[3.1] That The act does not violate the equal protection doctrine
enshrined in the constitution.
[3.2] That the Article 19 (1) (A) of the constitution has been not
violated.
[3.3] That Article 21 of the constitution has been violated.
[4].WHETHER SECTION 377 OF LPC SHOULD BE
DECLARED UNCONSTITUTIONAL OR NOT.
[4.1] That presumption is always in favour of constitutionality of
statute.

[4.1] That Section 377 is only defense against male rape.

[4.3] That Section 377 is only protection in case of animal sexual


abuse.
[4.4] That Section 377 is in the interest of public health.

8. PRAYER 16

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TABLE OF ABBREVIATIONS

& And

§ Section

₹ Indian Rupees

AIR All India Reporter

Anr. Another

Art Article

A.P Andhra Pradesh

Bom Bombay

Cr. Criminal

Corp. Corporation.

DLT Delhi Law Times

Govt. Government

HC High Court

ICCPR International Covenant on Civil and Political Rights

IndLaw Indian Law Times

IPC Indian Penal Code

LPC Lexton Penal Code

Ltd. Limited

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NCT National Capital Territory

No Number

Ors. Others

Org. Organisation.

P. Page

PIL Public Interest Litigation

SCC Supreme Court Cases

SC Supreme Court

SCR Supreme Court Report

SLP Special Leave Petition

R/W Read With

U.P. Uttar Pradesh

U.S United States

U/S Under Section

Vol. Volume

v. Versus

W.B. West Bengal

WWW World Wide Web

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INDEX OF AUTHORITIES

TABLE OF CASES

S. NO. NAME OF CASE CITATION PAGE NO.

1. A.V. Papayya Sastry v. Govt of Andhra AIR 2007 SC 1546. 4


Pradesh

2. Aero Traders Private Limited v. Ravinder AIR 2005 SC 15 4


Kumar Suri

3. Alister Anthony Pareira v. State of (2012) 2 SCC 648 5


Maharashtra

4. Appabhai And Anr. vs State Of Gujarat AIR 1988 SC 696 5

5. Arunima Baruah v. Union of India (2007) 6 SCC 120 3,7

6. Bachan Singh vs State Of Punjab AIR 1980 SC 898 4

7. Bidhannagar (Salt Lake) Welfare Assn. v. AIR 2007 SC 2276. 8


Central Valuation Board and Ors.

8. Bombay Dyeing & Manufacturing Co. AIR 2006 SC 1489 8


Ltd. v. Bombay Environmental Action
Group

9. Chiranjit Lal Chowdhary v. Union of AIR 1951 SC 41. 9


India

10. Chunilal V. Mehta and Sons Ltd. v. AIR 1962 SC 1314. 3


Century Spg. & Mfg. Co. Ltd.

11. Council of Scientific and Industrial AIR 1989 SC 1972 2


Research v. K. G. S. Bhatt

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12. Commissioner of Central Excise (2005) 3 SCC 646 9


Jamshedpur v. Dabur (India) Ltd.

13. Consumer Education and Research Centre AIR 1995 SC 922. 11


and Ors. v. Union of India and Ors

14. Devadasan v. Union of India AIR 1964 SC 179 8

15. Delhi Transport Corporation v. DTC AIR 1991 SC 101 11


Mazdoor Congress

16. Duarte v. Pacific Specialty Ins. Co. 13 Cal.App.5th 45 2


(2017).

17. Express Newspapers Pvt. Ltd. v. Union of AIR 1986 SC 872 11


India (UOI) and Ors.

18. Franscis alias Pannan v. State of Kerala AIR 1974 SC 2281. 6

19. Francis Coralie v. Union Territory of AIR 1994 SC 1844. 11


Delhi

20. Garg RK v. Union of India AIR 1981 SC 2138 8

21. Gobind v. State of M.P. 1975 CrLJ 1111 12

22. Gurdeep Singh v. State of Rajasthan AIR 1979 SC 1432 5

23. Gurmukh Singh v. State of Haryana 2009) 15 SCC 635. 6

24. Hanif v. State of Bihar AIR 1958 SC 731 8

25. Hansa Singh v. State of Punjab AIR 1977 SC 1801 6

26. Jatan Singh & Anr. v State of NCT Delhi 2009 Indlaw DEL 5
1940

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27. Kausha PN v. Union of India AIR 1978 SC 1457 8

28. Kedar Nath Bajoria v. State of W.B AIR 1953 SC 404 8

29. Keshavan Madhava Menon v. The State 1951CriLJ 680 14


of Bombay

30. Maneka Gandhi v. Union of India AIR 1978 SC 597. 11

31. Mathai Joby v. George. (2010) 4 SCC 358. 2

32. Modi Ram v. State of M.P 1973 SCC (Cri) 45. 5

33. Mohan Choudhary v. Chief AIR 1964 SC 173 13


Commissioner

34. Mr. X v. Hospital Z (1998) 8 SCC 296 12

35. MS Bhut Educational Trust v. State of AIR 2000 Guj 160 11


Gujarat,

36. Naz Foundation v. Government of NCT 160 Delhi Law


of Delhi Times 277

37. Om Kumar v. Union of India AIR 2000 SC 3689 11

38. P. B. Roy v. Union of India AIR 1972 SC 908 8

39. Pathumma v. State of Kerala AIR 1979 SC 771 8

40. Pritam Singh v. State. AIR 1950 SC 169 1

41. Ramdas Nayak v. Union of India AIR 1995 Bom 235 3

42. Ramkrishna Dalmia v. Justice Tendolkar AIR 1958 SC 538 13


and Ors.

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43. S. Kalawati v. Durga Prasad AIR 1975 SC 1272 1

44. Sanwat Singh v. State of Rajasthan AIR 1961 SC 715. 1,3

45. Shivanand Gaurishankar Baswati v. (2008) 13 SCC 323. 2


Laxmi Vishnu Textile Mills

46. State of H. P. v. Kailash Chand Mahajan AIR1992 SC 1277 2

47. Sunil Poddar & Ors. v Union Bank of 2008 (2) SCC 326 3
India

48. Suresh Kumar Koushal & Anr. v. Naz AIR 2014 SC 563 3,9
Foundation & Ors

49. Thiru Muruga Finanace v. State of Tamil AIR 2000 Mad 137 8
Nadu

50. Venkateshwara Theatre v. State of Andhra 1993 SCR (3) 616 9


Pradesh And Ors

51. Zahira Habibullah Sheikh v. State of AIR 2004 SC 3467 4


Gujarat

ACTS AND STATUTES:

1. THE INDIAN PENAL CODE, 1860


2. THE CONSTITUTION OF INDIA, 1950

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OTHER AUTHORITIES:

1. Convention for the Protection of Human Rights and Dignity of the Human Being with
regard to the Application of Biology and on Human Rights and Biomedicine, Arp. 4,
1997, E.T.S. No. 164 (entered into force Dec 1, 1999).Medicine: Convention

BOOKS:

1. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Y.V. Chandrachud


& S.S. Subbramani & V.R. Manohar & B.P. Banerjee eds., Vol. 2, 8th ed. 2012.
2. MP JAIN, INDIAN CONSTITUTIONAL LAW, 917 (7th ed. 2015).

REPORTS:
National AIDS Control Organisation, Annual Report 2011-12, page 9.
UN Report on Global AIDS Epidemic, 2008, pp 47-50.
National AIDS Control Organisation, Annual Report 2014-15.

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STATEMENT OF JURISDICTION

The Respondents do not submit to the Jurisdiction of the Special leave to Appeal under
Article 136 of the Constitution of Lexton and challenge its maintainability.

Article 136 of the Constitution of Lexton reads as:

“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 lexton.

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.”

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STATEMENT OF FACTS

The material case arises out of a Special Leave Petition filed by Rob before the Supreme Court
of Lexton to strike down Section 377, LPC and to enhance the punishment awarded to the Mr.
Joseph by the trial court which was further upheld by the high court.

I
--------------------------------------------BACKGROUND: -------------------------------------------------
State of Lexton is a secular country whose socio-legal system is similar to that of India. It aims
to protect rights of LGBT community and homosexuals. However, State of Lexton does not
recognize any right of the LGBT community or homosexuals. Further Constitution of Lexton
guarantees its citizens the right to privacy as their fundamental right.

II

-----------------------------------------BACKDROP OF THE CASE----------------------------------

Mr. Robb and Mr. Dillon works as a legal assistant and marketing manager respectively in
V&KPvt. Ltd. Their constant interaction in Office attracted both of them towards each other and
this resulted in carnal intercourse between them.

When they opened their relation to their parents, Dillon faced severe opposition from his parents
and because of their rebellious behavior and regular heated arguments, he moved to Robb’s house
and started living with Robb and his family.

III

----------------------------------------HAPPENING OF INCIDENT-----------------------------------

Robb used to reside with his parents and his Uncle Joseph. Robb's mother supported their
relationship and respected their relation however; Joseph was against their relationship stating it
to be a disgrace upon the society. Robb, being from legal profession was well aware about the
LGBT rights and therefore, he denied the outrageous behavior of his Uncle and continued to live
with Dillon. Agitated by Robb's move, Joseph decided to emasculate Robb using dangerous
weapon which led to grievous hurt.

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IV

-------------------------------------DECISION OF TRIAL COURT------------------------------------

Robb approached the trial court for penalizing Joseph for grievous hurt and also for violating his
LGBT rights while, Joseph defended his move of emasculation. The trial court awarded Joseph
imprisonment for a term of seven years and a fine of Rs.50000 ignoring the unnatural relationship
between Robb and Dillon.

--------------------------MATTER REACHES HON’BLE HIGH COURT-------------------------

Robb moved to the Hon’ble High Court and appealed for awarding more stringent punishment to
Joseph and also for declaring Sec.377 of Lexton Penal Code unconstitutional. The Hon’ble high
court maintained the decision of lower court and rejected to grant the certificate of appeal.

VII
--------------------------- INSTANTANEOUS SPECIAL LEAVE PETITION-----------------------

Aggrieved by the decision of the Hon’ble High court, Robb filed a SLP challenging the validity
of Section 377 of LPC and to enhance the punishment awarded to Mr. Joseph before the Hon’ble
Supreme Court for the same.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THE COURT IS


MAINTAINABLE OR NOT.

ISSUE 2

WHETHER THE QUANTUM OF SENTENCE AND FINE AWARDED TO MR. JOSEPH


SHOULD BE ENHANCED OR NOT.

ISSUE 3

WHETHER SECTION 377 VIOLATES THE FUNDAMENTAL RIGHTS GUARANTEED


UNDER CONSTITUTION OR NOT.

ISSUE 4

WHETHER SECTION 377 OF THE LEXTON PENAL CODE SHOULD BE DECLARED


UNCONSTITUTIONAL OR NOT.

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SUMMARY OF ARGUMENTS

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS


COURT IS MAINTAINABLE OR NOT.

Article 136 empowers the Supreme Court to grant in discretion Special leave to Appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India. It vests in the Supreme Court a discretionary power to be
exercised for satisfying the demands of justice under exceptional circumstances. Such power is to
be exercised with caution and in accordance with law and set legal principles. In the instantaneous
matter SLP is not maintainable as Special Leave cannot be granted when substantial justice has
been done and no exceptional or special circumstances exist for case to be maintainable. The
practice of non-interference in the decisions of lower courts is followed by the Supreme Court
when it is of the view that all relevant factors have been taken into consideration as in the
instantaneous matter.

II. WHETHER THE QUANTUM OF SENTENCE AND FINE AWARDED TO


MR. JOSEPH SHOULD BE ENHANCED OR NOT.

It is most humbly submitted before the Hon’ble Supreme Court that the quantum of sentence and
fine awarded by the Trial Court are adequate and shall not be increased. The respondent contends
that the decision of trial court was appropriate and shall be upheld by the Supreme Court. Firstly
emasculation has not taken place and also the magnitude of the offence is in proportion to the
punishment awarded. The fact of the present case shows that the act of Mr. Joseph was impulsive.
Also Mr. Robb is himself guilty of offence u/s 377. So, considering these points the court should
not increase the punishment of Mr. Joseph.

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III. WHETHER SECTION 377 VIOLATES THE FUNDAMENTAL RIGHTS


GUARANTEED UNDER CONSTITUTION OF LEXTON OR NOT.

It is contended that Section 377 does not violate any Fundamental Rights of the citizens. The
classification of sexual acts based on whether they are in consonance with the ordinary course of
nature or not is founded on an intelligible differentia and there is rational nexus between such
classification and objective sought by the legislation. Further, Section 377 is not arbitrary as mere
possibility of abuse of power does not render a legislation arbitrary. The state has compelling and
legitimate interest in the form of maintaining public health, decency and morality by enforcing
the provisions of Section 377. Section 377 does not violate Article 21 as it qualifies the test of
substantive due process and is in the interest of public health. It is also contended that Right to
Privacy u/a 21 is not absolute and it may be curtailed by following due process.

IV. WHETHER SECTION 377 OF LPC SHOULD BE DECLARED


UNCONSTITUTIONAL OR NOT?

It is contended that Section 377 is constitutionally valid it does not violate any Fundamental Rights
of the citizens. Further Section 377 is the only defense against male rape, the only protection
against animal sexual abuse and is in the interest of public health.

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