MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

I. WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE

BEFORE THE SUPREME COURT OF KINDIA?

The expression ‘Public Interest Litigation’ means a legal action initiated in a court of law for
the enforcement of public interest or general interest in which the public or a class of the
community have pecuniary interest or some interest by which their legal rights or liabilities
are affected1. It may however be emphasized that a PIL writ petition can be filed in the
Supreme court under Art. 32 only if a question concerning the enforcement of a fundamental
right is involved. It is clear on the plain language of clause (1) of Art.32 that whenever there
is a violation of a Fundamental Right, anyone can move the Supreme Court for enforcement
of such Fundamental Right. Though Article 32 is available only for the enforcement of
fundamental rights, in the name of the PIL occasionally matters in which no violation of any
fundamental rights is alleged, have also been entertained and decided.2 In respect of exercise
of its jurisdiction in PIL Cases, the Supreme Court observed that the Court has not forsaken
its duty and role as a court of law dispensing justice in accordance with law. It is only where
there has been a failure on the part of any authority in acting according to law or in non-
action or acting in violation of the law that the Court has stepped in. No directions are issued
which are in conflict with any legal provisions. Directions in appropriate cases have been
given where the law is silent.3 The Supreme Court has cautioned that public interest litigation
is a weapon which has to be used with great care and circumspection and that the judiciary
has to be careful to see that under the guise of redressing a public grievance it does not
encroach upon the sphere reserved by the constitution to the executive and the legislature4, or
to meddle in matters which are entirely political.5 In Ranji Thomas vs. Union of India6 and in
the case of Chairman & MD, BPL Ltd. vs. S.P. Gururaja7, the court has explained that the
grievance in a public interest action is about the content and conduct of governmental action

1
Janata Dal vs. H.S. Chowdhary,(1992) 4 SCC 305 : 1993 SCC (Cri) 36, as cited in Ashok Kumar Pandey vs.
State of W.B., (2004) 3 SCC 349, 356 (para 7) : AIR 2004 SC 280, applied in Neetu vs. State of Punjab, (2007)
10 SCC 614, 619 (paras 7-8). See also B. Singh (Dr.) vs. U.O.I., (2004) 3 SCC 363, 371 (para 7) : AIR 2004 SC
1923.
2
Prof. Yashpal vs. State of Chhattisgarh, (2005) 5 SCC 420 : AIR 2005 SC 2026. Sarbananda Sonowal vs.
Union of India, (2005) 5 SCC 665, where in response to the argument that the petition was not fit for Art. 32 the
court at p.725 giving reference to a few earlier cases where violation of fundamental rights was not involved
also referred to Prof. Yashpal case to justify its stand. Earlier cases relied on , D.C. Waadhwa vs. State of Bihar,
(1987) 1 SCC 378 & R.K. Garg vs. Union of India, (1981) 4 SCC 675.
3
Narmada Bachao Andolan vs. Union of India, (2000) 10 SCC 664, 762 (para 231) : 2000 Supp (2) JT 6.
4
State of Himachal Pradesh vs. students parent, Medical College, Shimla, AIR 1985 SC 910 : (1985) 3 SCC
169; Sachidanand Pandey vs. State of W.B., AIR 1987 SC 1109 (paras 58, 60) : (1987) 2 SCC 295.
5
Maharashi Avadhesh vs. State, AIR 1991 All. 52 (para 18).
6
SCC 2000 (7), supreme 264
7
AIR 2003 SC 4536
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

in relation to the constitutional or statutory rights of segments of society and in certain

circumstances the conduct of government policies. The relief to be granted looks to the future
and is, generally, corrective rather than compensatory which, sometimes, it also is. The
proceedings in PIL are not adversarial but are of cooperation and collaboration between the
State and the Court.8

From time to time the court has drawn guidelines to be observed in PIL.9 Therefore, the
Supreme Court would not approach matters, where public interest is involved, in a technical
or a narrow manner.10 The jurisdiction of Supreme Court in a Public Interest Litigation
cannot be pressed or affectively adjudicated upon in the writ petitions raising larger
questions.11 The Supreme Court summarised the principles evolved by it in various cases in
relation to entertainment of PIL. A writ petitioner who comes to the court for relief in public
interest must come not only with clean hands like any other writ petitioner but also with a
clear heart, clean mind and clean objective.12 In Janata Dal vs. H.S. Chowdhary13, the Court
ruled that the writ petitioner had no locus standi to file the PIL writ petition. The Court came
to the conclusion that the petition had been filed not for the promotion of public interest but
for the protection of certain accused persons. In Union of India vs. Association for
Democratic Reforms14, the Supreme Court observed that it is not possible for this court to
give any directions for amending the act or the statutory rules. It is for the parliament to
amend the act and the rules. It is also established law that no direction can be given, which
would be contrary to the act and the rules.15 Thus Court cannot direct legislature to make
particular enactment16, and the Court cannot issue direction for making of law or subordinate
legislation17. Thus there must be a clear breach of fundamental right not involving disputed

8
Gaurav Jain vs. Union of India, (1997) 8 SCC 114 (para 51) : AIR 1997 SC 3021, per K. RAMASWAMY, J.
9
Guruvayoor Devaswom Managing Committee vs. C.K. Rajan, (2003) 7 SCC 546: AIR 2004 SC 561
10
Mohd Islam vs. Union of India, (2003) 4 SCC 1, 8 (paras 9 and 10)
11
Joydeep Mukharjee vs. State of West Bengal, (2011) 2 SCC 706: AIR 2011 SC 1169:2011 AIR SCW 1306.
12
Ashok Kumar Pandey vs. State of W.B., (2004) 3 SCC 349, 355; T.P. Moideen Koya vs. Govt. of Kerala,
(2004) 8 SCC 106: AIR 2004 SC 4733; Dattaraj Nathuji Thaware vs. State of Maharashtra, (2005) 1 SCC 590,
592-93 (para 4) : AIR 2005 SC 540, relying on Ramjas Foundation vs. U.O.I., 1993 Supp (2) SCC 20 : AIR
1993 SC 852 and K.R. Srinivas vs. R.V. Premchand, (1994) 6 SCC 620.
13
AIR 1993 SC 892: (1992) 4 SCC 305.
14
(2002) 5 SCC 294 : AIR 2002 SC 2112.
15
The general directions issued by the Court are quasi-legislative in nature. Dinesh Trivedi, M.P. vs. Union of
India, (1997) 4 SCC 306; State of West Bengal vs. Sampat Lal, AIR 1985 SC 195 : (1985) 1 SCC 317.
16
Suresh Seth vs. Commissioner, Indore Municipal Corporation, AIR 2006 SC 767: 2005 AIR SCW 6380: JT
2005 (9) SC 210: (2005) 13 SCC 287: 2005 (7) Supreme 134.
17
S.C. Employees Association vs. Union of India, (1989) 4 SCC 187: AIR 1990 SC 334: (1989) 2 LLJ 506
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

questions of fact.18 Public interest litigation cannot be entertained if the law in that respect is
already settled.19

In Gupta’s case20 where Upendra’s case21 was referred to, the doctrine of public interest
litigation was formulated by a bench of 7 judges in a comprehensive form, to apply to any
case of public injury arising from -

a) The breach of any public duty, or

b) The violation of some provision of the constitution, or

c) Of the law

For the eradication of child prostitution, the Supreme Court directed the Governments of the
States and Union Territories -

a) To set up Advisory Committees to suggest measures to be taken in this behalf, and

b) To take steps in providing rehabilitative homes manned by trained personnel.22

Therefore it is humbly submitted before this Hon’ble Court that the PIL filed by “The Pro
Bono Girls’ Association” under Article 32 of the Constitution of Kindia is not maintainable
because there has been no breach of any fundamental right and also the law in that respect is
already settled. So the petitioner does not have locus standi to direct the Court to enact
particular legislation.

18
Northern Corporation vs. Union of India, (1990) 4 SCC 239: AIR 1991 SC 764: (1990) 49 ELT 332.
19
State of Uttaranchal vs. Balwant Singh Chaufal, AIR 2010 SC 2550: 2010 AIR SCW 1029: (2010) 3 SCC
402.
20
Gupta, S.P. vs. Union of India, AIR 1982 SC 149 (paras 16, 20, 22) : 1981 Supp. SCC 87 – 7 Judges.
21
Upendra Baxi vs. State of U.P., (1981) 3 Scale 1136 (SC) : (1983) 2 SCC 308, cited in Gupta, S.P. vs. Union
of India, AIR 1982 SC 149 (paras 16-17) 1981 Supp. SCC 87; Fertilizer Corporation kamgar Union vs. Union
of India, AIR 1981 SC 344 (para 23) : (1981) 1 SCC 658 : 1981 (1) LLJ 193.
22
Vishal Jeet vs. Union of India, (1990) 3 SCC 318 (para 16) : AIR 1990 SC 1412.; Vijay Shekhar vs. Union of
India, (2004) 4 SCC 670 : 2004 SCC (Cri) 1407. Delay in implementation of scheme for welfare of child labour,
deprecated, more time granted, M.C. Mehta vs. State of T.N., (2004) 10 SCC 144, 145 (para 2).
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

II. WHETHER PROSTITUTION SHALL BE LEGALISED AND REGULARISED IN

FURTHERANCE OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION OF
KINDIA

A. IN FURTHERANCE OF ARTICLE 14 OF THE CONSTITUTION OF KINDIA

Equality is one of the magnificent corner-stones of Indian democracy.23 The doctrine of

equality before law is a necessary corollary of Rule of law which pervades the Indian
Constitution.24 Article 14 however entails that, “equals should be treated alike and unequals
should be treated differently. In other words persons who are in like circumstances should
only be treated equally. Because if people are not in like circumstances then treating them
equally would amount to manifest injustice.25 The Constitution is wedded to the concept of
equality.26 This means that even a Constitutional amendment offending the right to equality
will be declared invalid. Neither parliament nor the state legislature can transgress the
principle of equality. Art. 14 enjoins the state to take into account de facto inequalities which
exist in the society and to take affirmative action by way of giving preference to the socially
and economically disadvantaged persons or inflicting handicaps on those more
advantageously placed, in order to bring about real equality.27

Limitation of the doctrine of equal protection

The principle does not take away from the State the power of classifying persons for
legitimate purposes.28 The legislature is competent to exercise its discretion and make
classification.29 Every classification is in some degree likely to produce some inequality, and
mere production of inequality is not enough.30 Differential treatment does not per se
constitute violation of Article 14. It denies equal protection only when there is no reasonable

23
Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477.
24
Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C. 34
25
Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477 ; Ashutosh Gupta v. State of Rajasthan, (2002) 4
S.C.C 34
26
KeshavanandaBharati v. State of Kerala, A.I.R. 1973 S.C. 1461
27
Indra Sawhney vs. Union of India, AIR 1993 SC 477 (paras 4, 365, 397) : 1992 Supp. (3) SCC 217 – 9 Judge
Bench.; Kailash Chand Sharma vs. State of Rajasthan, (2002) 6 SCC 562, 592 (para 48) : AIR 2002 SC 2877;
E.V. Chinnaiah vs. State of A.P., (2005) 1 SCC 394, 425 (para 79) : AIR 2005 SC 162.
28
State of Bombay vs. Balsara F.N., 1951 SCR 682 (708-709); H.P. Gupta vs. Union of India, (2002) 10 SCC
658, 659-60 (para 5)
29
Anukul Chandra Pradhan vs. Union of India, (1997) 6 SCC 1 (para 5).
30
State of Bombay vs. Balsara F.N., 1951 SCR 682.
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

basis for the differentiation.31 Legislation enacted for the achievement of a particular object
or purpose need not be all embracing. It is for the legislature to determine what categories it
would embrace within the scope of legislation and merely because certain categories which
would stand on the same footing as those which are covered by the legislation are left out
would not render the legislation which has been enacted in any manner discriminatory and
violative of Article 14.32 When a law is challenged as denying equal protection; the question
for determination by the Court is not whether it has resulted in inequality, but whether there
is some difference which bears a just and reasonable relation to the object of legislation. 33
Mere differentiation or inequality of treatment or inequality of burden 34 does not per se
amount to discrimination within the inhibition of the equal protection clause. To attract the
operation of the clause it is necessary to show that the selection or differentiation is
unreasonable or arbitrary; that it does not rest on any rational basis having regard to the
object which the legislature has in view.35 Therefore in “D.C. Bhatia vs. Union of India” it
was clearly reiterated by the Supreme Court that, it is for the legislature to identify the class
of people to be given protection and on what basis such protection was to be given. The
Court cannot interfere.36

The classification must be founded on an intelligible differentia which distinguishes persons

or things that are grouped together from the others left out of the group. The corollary that
also follows is that person or things grouped together are ‘equals’ for the purpose of
classification. Henceforth, if a classification is not proved on the touchstone of the principle
whether the classification is reasonable having an intelligible differentia and a rational basis
germane to the purpose, the classification has to be held as arbitrary and discriminatory.37
The differentia which is adopted as the basis of the classification must have a rational or
reasonable nexus with the object sought to be achieved by the statute in question.38 Now in
this case, the classification of sexual workers made on the basis of sexual exploitation under

31
Ameeroonisa Begum vs. Mehboob Begum, 1953 SCR 404 (414); Babulal Amthalal Mehta vs. Collector of
Customs, Calcutta, AIR 1957 SC 877; Gopi Chand vs. Delhi Administration, AIR 1959 SC 609 : 1959; Ashok
Smokeless Coal India (P.) Ltd. vs. Union of India; (2007) 2 SCC 640
32
Sakhawat Ali vs. State of Orissa, 1995 (1) SCR 1004 : AIR 1995 SC 166.
33
Suraj Mall vs. Biswanath, AIR 1953 SC 545
34
Ramkrishna Dalmia vs.Tendolkar Justice S.R., AIR 1958 SC 538 : 1959 SCR 279.
35
Suraj Mall vs. Biswanath, AIR 1953 SC 545; State of W.B. vs. Anwar Ali Sarkar, 1952 SCR 284; State of
A.P. vs. Nalla Raja Reddy, 1967 (3) SCR 28 (44) : AIR 1967 SC 1458.
36
D.C. Bhatia vs. Union of India, (1995) 1 SCC 104.
37
Sube Singh v. State of Haryana, (2001) 7 S.C.C. 545
38
Supra note 25; LaxmiKhandsari v. State of U.P., A.I.R. 1981 S.C. 873; State of Haryana v. Jai Singh, (2003)
9 S.C.C. 114; Welfare Association A.R.P. v. Ranjit P. Gohil, (2003) 9 S.C.C. 358; see Javed v. State of
Haryana, (2003) 8 S.C.C. 369.
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

section 370 of Kindian Penal Code has a reasonable nexus with the object sought to be
achieved by the statute in question. Thus there is enough reasonable nexus between the
classification and the purpose that it seems to achieve.

B. IN FURTHERANCE OF ARTICLE 19(1) (G) OF THE CONSTITUTION OF

KINDIA

Article 19(1) (g) of the Constitution entails freedom of profession, trade, business and these
freedom mean that every citizen has the right to choose his own employment or to take up
any trade. The fundamental right guaranteed in Art. 19(1) (g) as comprehensive as possible
and to include all avenues and modes through which a person earns his livelihood. If by a
statutory provision the right of a person to carry on his business is affected, he may in his
own right maintain an action. A person must be held to have access to justice if his right in
any manner whether to carry on business is infringed or there is threat to his liberty. Access
to justice is a human right.39 A balance should be maintained between freedom of speech and
expression and public decency and morality, but when the latter is substantially transgressed,
the former must give way.40 Under the Constitution of Kindia, any citizen has the right to
engage in any business which is known to the common law, as of right, and the state has the
power to regulate or restrict any business on the grounds specified in Cl. (6). 41There are
certain activities which are so inherently pernicious that nobody can be considered to have a
fundamental right to carry them on as a trade or business42, i.e. the right to practise any
profession or to carry on any occupation, trade or business does not extend to practising a
profession or carrying on an occupation, trade or business which is inherently vicious and
pernicious, and is condemned by all civil societies. It does not entitle citizens to carry on
trade or business in activities or goods which are immoral, obnoxious, injurious to health,
safety and welfare of the general public, i.e., res extra commercium, (outside commerce).
Henceforth all activities related to sex work are illegal and immoral and thus outside the

39
Tashi Delek Gaming Solutions Ltd. vs. State of Karnataka, (2006) 1 SCC 442 (paras 34 and 37), relying on
Calcutta Gas Co. (Proprietary) Ltd. vs. State of W.B.., 1962 Supp (3) SCR 1 : AIR 1962.; Dwarka Prasad
Agarwal vs. B.D. Agarawal, (2003) 6 SCC 230
40
Ranjit D. Udeshi vs. State of Maharashtra, AIR 1965 SC 881.
41
Saghir Ahmed vs. State of U.P., 1955 (1) SCR 707 (717).
42
State of Bombay vs. Chamarbaughwala R.M.D., 1957 SCR 874; This proposition is now well established
by a member of Constitution Bench decision referred to in Khoday vs. State of Karnataka, (1995) 1 SCC
574 (para 54, 60).
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

purview of commerce. In “Hamdard Dawakhana vs. Union of India”43 the Supreme Court
held that the predominant object is not merely to curb advertisements offending against
decency or morality, but also to prevent self-medication by prohibiting instruments which
might be used to advocate or spread the evil. Art. 19(6) empowers Parliament and the State
Legislation to impose reasonable restrictions on the exercise of the right conferred by Art.
19(1)(g) of the Constitution in the interest of general public. In case of “Bannari Amman
Sugars Ltd. vs. Commercial Tax Officer”44 and “U.O.I. vs. International Trading Co”45, the
Supreme Court was of the view that reasonableness of restriction is to be determined in an
objective manner and from the standpoint of interests of the general public and not from the
standpoint of interests of persons upon whom the restrictions have been imposed or upon
abstract consideration. Also a restriction in public interest cannot be said to be unreasonable
merely because in a given case it operates harshly on a person or some persons. 46 In
determining whether there is any unfairness involved in imposing the restriction, the nature of
the right alleged to have been infringed, the underlying purpose of the restriction imposed,
the extent of urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing condition at the relevant time enter into judicial verdict, the
reasonableness of the legitimate expectation has to be determined with respect to
circumstances relating to trade or business in question.47 Three propositions are well settled:

i. “restriction” or “regulation” includes “prohibition” and in order to determine whether

total prohibition would be reasonable, the court has to balance the direct impact on the
fundamental right of the citizens as against the greater public or social interest sought
to be safeguarded;
ii. The standard of judging reasonability of restriction or restriction amounting to
prohibition remains the same, excepting that a total prohibition must also satisfy the
test that a lesser alternative would be inadequate. The court would always be correct
to justify the enactment of law for the purpose sought to be achieved. 48

43
AIR 1960 SC 554 : (1960) 2 SCR 671
44
AIR 2005, SCC 625, 636 (para 17), relying on Parbhani Transport Co-op. Society Ltd. vs. R.T.A, AIR 1960
SC 801 : (1960) 3 SCR 177.
45
AIR (2003) 5 SCC 437.
46
Krishnan Kakkanth vs. Govt. of Kerala, (1997) 9 SCC 495 (para 27) : AIR 1997 SC 128
47
Bannari Amman Sugars Ltd. vs. Commercial Tax Officer, (2005) 1 SCC 625, 636 (para 17) : (2004) 10 JT
500.
48
State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534.
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

iii. Where a business or trade is inherently dangerous,49 total prohibition thereof would be
reasonable. Whether a particular restriction on trade to the extent of its complete
prohibition can be held to be “reasonable” within the meaning of Art. 19(6) depends
upon the nature of the trade involved and the public interest that is intended to be
served by such total restriction.

Similarly, trading in dangerous goods such as explosives50 or trafficking in women51 or sex

tourism may be totally prohibited under Art. 19(1)(g) of the constitution of Kindia. The
expression “traffic in human beings” used in Art. 23(1), commonly known as slavery, implies
the buying and selling of human beings as if they were chattels, and such a practice is
abolished by Art. 23(1). Parliament has enacted the Immoral Traffic (Prevention) Act, 1956,
with the object of inhibiting or abolishing the immoral traffic in women and girls. The act
also aims at suppressing the evils of prostitution in women and girls and achieving a public
purpose, viz., to rescue the fallen women and girls to stamp out the evils of prostitution and
also to provide an opportunity to these fallen victims so that they could become decent
members of the society. This malady is not only social but also a socio-economic problem.
The malady can be eradicated only if the law enforcing authorities take a very severe and
speedy action against all erring persons.52

A restriction to be valid must have a direct and proximate nexus with the object which the
legislation seeks to achieve and the restriction must not be in excess of that object i.e., a
balance between the freedoms guaranteed under Art. 19(1)(a) to (g) and the social control
permitted by clauses (2) to (6) of Art. 19. It is the substance of legislation and not its
appearance or form which is to be taken into consideration while assessing its validity. This
introduces the principle of ‘proportionality’. This means the court would consider whether
the restriction imposed by legislation on the Fundamental Rights are disproportionate to the
situation and are “not the least restrictive of the choices”. It is the direct, inevitable and the
real, not the remote, effect of the legislation on the Fundamental Right which is to be
considered.53 Henceforth the test of “reasonable restriction and proportionality” satisfied.

49
Har Shankar vs. Dy. Excise Commr., AIR 1954 SC 220 : 1954 SCR 873, Synthetics and Chemicals Ltd. vs.
State of U.P., (1990) 1 SCC 109 : AIR 1990 SC 1927.
50
Har Shankar vs. Dy. Excise Commr., AIR 1954 SC 220 : 1954 SCR 873
51
Cooverjee B. Bharucha vs. Excise Commr., AIR 1954 SC 220 : 1954 SCR 873; Synthetics and Chemicals
Ltd. vs. State of U.P. (1990) 1 SCC 109 : AIR 1990 SC 1927
52
Vishal Jeet vs. Union of India, AIR 1990 SC 1412.
53
Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

Arguendo the classification and prohibition of all sex related activities in the present case
qualifies as a reasonable restriction under Art. 19(1)(g) of the Constitution.

C. IN FURTHERANCE OF ARTICLE 21 OF THE CONSTITUTION OF KINDIA

Article 21 which is one of the luminary provisions in the Constitution and is a part of the
scheme for fundamental rights occupies a place of pride in the Constitution. The article
mandates that no person shall be deprived of his life and personal liberty except according to
the procedure established by law. This sacred and cherished right i.e., personal liberty has an
important role to play in the life of every citizen. Life or personal liberty includes a right to
live with human dignity. There is an inbuilt guarantee against torture or assault by the State
and its functionaries.54 Right to life, enshrined in Art. 21 means something more than survival
or animal existence.55 It would include the right to live with human dignity.56 It would
include all those aspects of life which go to make a man’s life meaningful, complete and
worth living.57 That which alone can make it possible to live must be declared to be an
integral component of the right to live.58 The right to life guaranteed under Art. 21 of the
Constitution embraces within its sweep not only physical existence but the quality of life.
Dispensation of social justice and achieving the goals set forth in the Constitution are not
possible without the active, concerted and dynamic efforts made by the person concerned
with the justice dispensation system. In each case where a person complains of the
deprivation of his life or personal liberty, the court, in the exercise of its constitutional power
of judicial review, has to decide whether there is a law authorising such deprivation and
whether, in the given case, the procedure prescribed by such law is reasonable, fair and just,
and not arbitrary, whimsical and fanciful. Any law depriving a person of his livelihood must
meet the challenge of Art. 14, 19 and 21 of the Constitution.59 Hence the procedure
prescribed by such law must be just, fair and reasonable and not arbitrary, fanciful,
oppressive, vague, unfair or unreasonable. The trend in the Supreme Court is that when

54
Munshi Singh Gautam vs. State of M.P., (2005) 9 SCC 631, 637 (para 4) : AIR 2005 SC 402
55
State of Maharashtra v. Chandrabhan, AIR 1983 SC 803 (paras 1, 20)
56
Francis Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746 (para 3).
57
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
58
Olga Tellis v. Bombay Corpn., AIR 1986 SC 180 (paras 33-34).
59
Yadav, D.K. vs. J.M.A. Industries Ltd., (1993) 2 UJSC 348 (paras 10, 14) : 1993 (3) SCC 259 : 1993-II LLJ
696 – 3-Judges
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

constitutionality of a statute is challenged as arbitrary or unreasonable, the Court has to test

its validity on the anvil of Arts. 14, 19 and 21, read together.60

Courts right to interfere when a person is deprived of life and liberty otherwise than
according to procedure established by law

The right to livelihood cannot be extended to carrying on trade or business which is injurious
to public interest or has insidious effect on public morale or public order.61Right to privacy is
an essential component of the right to life but is not absolute and may be restricted for
prevention of crime, disorder or protection of health or morals or protection of rights and
freedom of others.62 The right to privacy has been read into Art. 21 with the expansive
interpretation of the ‘personal liberty’ by the Supreme Court, but this right is not an absolute
right and, if there were conflict between fundamental rights of the two parties, that right
which advances the public morality would prevail.63 But whether the procedure by the
Legislature is ‘just, fair and reasonable’ would depend upon the circumstances of each case. 64
Article 21 says that a person may be deprived of his liberty only according to procedure
established by law. It follows, therefore, that those who feel called upon to deprive other
persons of their personal liberty in the discharge of what they conceive to be their duty must
strictly and scrupulously observe the forms and rules of the law.65

Arguendo, prohibition imposed by the state of kindia on all sex related activities does not
violate Art. 21 of the constitution from the standpoint of carrying such activities for
sustaining a livelihood as well as deprivation of personal liberty.

60
Minerva Mills vs. Union of India, AIR 1980 SC 1789 : (1980) 2 SCC 591; Olga Tellis vs. Bombay Corp.,
AIR 1986 SC 180 : (1985) 3 SCC 545; D.T.C. vs. Mazdoor Union, AIR 1991 SC 101 (para 258-59).
61
Dalmia Cement (Bharat) Ltd. vs. Union of India, (1996) 10 SCC 104.
62
‘X’ vs. Hospital ‘Z’, (1998) 8 SCC 296 (para 28).
63
Sharda vs. Dharmpal, (2003) 4 SCC 493 : AIR 2003 SC 3450, relying on Govind vs. State of M.P., (1975) 2
SCC 148.
64
Charan Lal Sahu vs. Union of India, (1990) 1 SCC 613 (paras 97-98) : AIR 1990 SC 1480
65
Ram Narayan vs. State of Delhi, 1953 SCR 652.