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ARGUMENTS ADVANCED

Most respectfully showeth

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT.

1. It is humbly submitted that the Special Leave Petition against the judgment of the Hon’ble
High Court is not maintainable under Article 136 of the Constitution of Lexton. 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 Lexton.1

2. The SLP is to be granted in exceptional cases- cases where grave and substantial injustice
has been done or substantial question of law is involved.2 Though wide discretionary power
is invested in the Hon’ble Supreme Court, it should be exercised sparingly and in
exceptional cases only.3 It is humbly submitted that SLP is not maintainable as Special
leave cannot be granted when the appeal filed is absurd [1.1], no gross injustice has been
done [1.2] and no substantial question of law exists [1.3]. The appeal should also be
dismissed in violation of the Rule of Equity [1.4].

1.1. THAT THE SPECIAL LEAVE PETITION IS PALPABLY ABSURD.

3. It is most humbly submitted before this Hon’ble court that the SC would not grant a leave
for Special Appeal if the appeal is palpably absurd4 or not clearly defined. In the present
case, the petition does not clearly define which part of Section 377 of the Lexton Penal
Code the petitioner wants to be declared unconstitutional.

1
Art. 136, Constitution of India, 1950.
2
Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715.
3
Pritam Singh v. State, AIR 1950 SC 169.
4
S. Kalawati v. Durga Prasad, AIR 1975 SC 1272.

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4. Section 377 applies on men and women, for consensual and non-consensual sexual
intercourse and for penile-vaginal and penile-non-vaginal intercourse. Moreover it also
criminalizes bestality. Even in the judgment of Naz Foundation v. Govt. of NCT of Delhi5
the Delhi HC declared only the consensual sexual acts between adults in private to be
outside the ambit of Section 377. But the petitioner has failed to classify the categories
that should be removed from the ambit of Section 377. If the entire Section is declared
unconstitutional, it would certainly affect the justice system. Hence the petition is
ambiguous6 and absurd and should not be accepted.

1.2. THAT NO GRAVE INJUSTICE HAS BEEN DONE IN THIS CASE.

5. It is humbly submitted by the respondent that the appellant must show that if there is no
interference on behalf of the Hon’ble court, it will result in grave injustice and the case has
features of sufficient gravity to warrant review of the decision appealed against on merits.
Only then the court would exercise its overriding powers under Art. 1367.
6. However no such exceptional circumstances exist in this case. The sentence has been given
by the trial court keeping in mind the provocation on behalf of the petitioner, mitigating
circumstances and background events of the case.

7. Circumspection and circumscription must induce the Court to interfere with the decision
under challenge only if the extraordinary flaws or grave injustice or other recognized
grounds are made out.8 Special leave will not be granted when there is no failure of justice
or when substantial justice is done, though the decision suffers from some legal errors.9
Hence no leave should be granted in the present case.

1.3. THAT NO SUBSTANTIVE QUESTION OF LAW EXISTS.

5
160 (2009) DLT 277
6
Duarte v. Pacific Specialty Ins. Co., 13 Cal.App.5th 45 (2017).
7
M.P Jain, Indian Constitutional Law, 5776 (16th edn Lexis Nexis Butterworth 2011).
8
Shivanand Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323.
9
Council of Scientific and Industrial Research v. K. G. S. Bhatt, AIR 1989 SC 1972 ; State of H. P. V. Kailash
Chand Mahajan, AIR1992 SC 1277; Mathai Joby v. George, (2010) 4 SCC 358.

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8. It is humbly submitted that the appeal can be made in a case where a substantial question
of law is involved or where gross injustice has been observed.10
9. The proper test for determining whether a question of law raised in the case is substantial
would be whether it is of general importance or whether it directly and substantially affects
the rights of the parties, and if so whether it is either an open question in the sense that it is
not finally settled by the Supreme Court or the Privy Council.11

10. The matter sub judice has already been settled in the case of Suresh Kumar Koushal & Anr
v. Naz Foundation & Ors.12 Granting an appeal would lead to repetitive litigation on the
very same issue coming up before the court again and again13 and hence should not be
entertained. The principle of Re judicata pro veritate occipitur i.e. “a judicial decision must
be accepted as correct” must be followed. Hence the leave for special petition is not
maintainable in the above case.

1.4. THAT THE PETITIONER VIOLATES THE RULE OF EQUITY.

11. It is a trite law that a person invoking the discretionary jurisdiction of the Court cannot be
allowed to approach it with a pair of unclean hands.14 It is based on the principle that “he
that hath committed an inequity, shall not have equity”.15
12. In the present case, the petitioner is himself guilty of committing acts which are illegal and
punishable under Section 377 of the Lexton Penal Code. The petitioner wants to avoid any
punishment which he may be sentenced to by the superior courts even if the trial court has
ignored his unnatural relation with Mr. Dillon and hence has approached the Hon’ble court
for declaring Section 377 as unconstitutional.
13. A leave to appeal would not be granted if the appellant has not come forward with clean
hands16. Since the present appeal involves self-interest, it should not be allowed.

10
Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715.
11
Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314.
12
AIR 2014 SC 563
13
Ramdas Nayak v. Union of India, AIR 1995 Bom 235
14
Arunima Baruah v. Union of India, (2007) 6 SCC 120
15
Halsbury's Laws of England, 4th Edition, Volume 16
16
Sunil Poddar & Ors. v Union Bank of India, 2008 (2) SCC 326

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14. Although the power has been held to be plenary, limitless17, adjunctive, and unassailable18,
in Aero Traders Private Limited v. Ravinder Kumar Suri19, it was held that the powers
under Article 136 should be exercised with caution and in accordance with law and set
legal principles. Hence it is humbly submitted that SLP should not be admitted in this case.

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

JOSEPH SHOULD BE ENHANCED OR NOT.

15. 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, Mr. Joseph has been imposed with a fine of ₹50000 and imprisonment for
seven years by the Trial Court under Section 32620 of the Lexton Penal Code.
16. The decision was upheld by the Hon’ble High Court. The respondent contends that the
decision of trial court was appropriate and shall be upheld by the Supreme Court as the
sentence has been given by the trial court keeping in mind the circumstances of the case.
17. It is contended that the court should take into account various facts and circumstances
peculiar before determining the quantum of sentence21 and the same has been done in this
case.
18. The aggravating and mitigating factors which are needed to be considered in the present
case are that Emasculation has not taken place [2.1], magnitude of offence does not permit
enhancement of punishment [2.2], provocation was there and Mr. Joseph’s act was
impulsive not pre-planned [2.3], Mr. Robb himself is guilty of offence u/s 377 [2.4].

2.1 THAT EMASCULATION HAS NOT TAKEN PLACE.

17
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
18
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
19
AIR 2005 SC 15
20
Section326, Indian Penal Code, 1860.
21
Bachan Singh v. State Of Punjab, AIR 1980 SC 898.

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19. It is humbly submitted that emasculation has not taken place in the present case. The
factsheet says that Mr. Joseph tried to emasculate Mr. Robb using dangerous weapon which
led to grievous hurt. But it is nowhere stated that emasculation has taken place.
20. It is clear that Mr. Joseph is guilty of committing an offence under Section 326 but he is
not guilty for the act of emasculation. This point should be considered by the Hon’ble
Supreme Court for determining the question of enhancement of sentence as one of the
prime objectives of the criminal law is imposition of an appropriate, adequate, just and
proportionate sentence commensurate with the nature of the crime and the manner in which
the crime is done.22
21. Hence it is humbly submitted that the sentence awarded should not be enhanced keeping
in mind the nature of the offence.

[2.2] THAT MAGNITUDE OF OFFENCE DOES NOT PERMIT ENHANCEMENT OF

PUNISHMENT

22. It is humbly submitted before the Hon’ble Court the Magnitude of the offence is one of the
factors which is to be considered while determining the quantum of offence.23
23. In the present case the magnitude of the grievous hurt taken place is not so severe and
hence enhancing punishment would only lead to miscarriage of justice24.
24. It is humbly submitted that normally in cases of emasculation such high punishment is not
given. In a case an accused was awarded imprisonment of 5 years even when emasculation
and cutting of nose took place.25 Also, where the accused was found guilty of maiming
both the hands of the victim, a sentence of 3 years’ imprisonment and a fine of ₹600 was
held to be just and appropriate.26 Thus considering these cases the court should not enhance
the punishment of Mr. Joseph.

22
Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648
23
Modi Ram v. State of M.P. 1973 SCC (Cri) 45.
24
Appabhai And Anr. v. State Of Gujarat, AIR 1988 SC 696
25
Jatan Singh &Anr. v. State of NCT Delhi 2009 Indlaw DEL 1940.
26
Gurdeep Singh v. State of Rajasthan AIR 1979 SC 1432.

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[2.3] THAT PROVOCATION WAS THERE AND MR. JOSEPH’S ACT WAS IMPULSIVE
NOT PRE-PLANNED

25. It is humbly submitted that the act of causing grievous hurt to the petitioner took place in
the spur of moment. Indeed there was no sudden provocation but still provocation was
there. And such provocation is considered in many cases in determining the quantum of
punishment27. Motive is one of the important factors which is required to be taken into
consideration before awarding appropriate sentence to the accused.28
26. In Franscis alias Pannan v. State of Kerala29, the deceased had on two previous occasions
attacked the accused’s brother and brother-in-law. The accused was inconstant fear of
menace from the deceased to the lives and safety to the near and dear of the accused. So,
even though the earlier incidents of attack on family members did not constitute ‘sudden
and grave’ provocation, but were a source of provocation, the sentence was reduced to life
imprisonment.
27. It is clearly stated in the factsheet that Joseph was agitated by Robb’s move and after that
he decided to emasculate him. Also, Mr. Robb and Mr. Dillon used to reside in the same
house with Mr. Joseph. They used to do acts which are illegal under section 377 of LPC.
Mr. Joseph tolerated their acts for some days and after that when it became intolerable for
him he attempted to emasculate Mr. Robb.
28. All these facts prove that provocation was there and the act was committed in the impulse
of moment. So, the court is requested to consider these facts for deciding on the question
of enhancement of sentence.

[2.4] THAT Mr. ROBB HIMSELF IS GUILTY OF OFFENCE UNDER SECTION 377

29. It is humbly submitted that Mr. Robb himself is guilty of offence under section 377 of
LPC30. According to the Doctrine of equity one who comes to the court must come with

27
Hansa Singh v. State of Punjab, AIR 1977 SC 1801
28
Gurmukh Singh v. State of Haryana (2009) 15 SCC 635.
29
AIR 1974 SC 2281.
30
Section 377 IPC, 1860.

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clean hands. It is a trite law that a person invoking the discretionary jurisdiction of the
Court cannot be allowed to approach it with a pair of unclean hands.31It is based on the
principle that “he that hath committed an inequity shall not have equity”.32
30. It is also submitted that Mr. Robb was a legal professional and was well aware about the
legal position of his acts, but even after that he continued living with Dillon. The court
before thinking over the question of enhancing the sentence must consider the matter of
appellant being guilty of offence. In the present case Mr. Robb do not feel guilty of the
offence he has committed. Taking into account this matter the court should not enhance
the punishment of Mr. Joseph.

III. WHETHER SECTION 377 VIOLATES THE FUNDAMENTAL RIGHTS

GUARANTEED UNDER CONSTITUTION OF LEXTONOR NOT.

1. It is humbly submitted that the respondent contends that Sec 377, IPC which puts a ban on
homosexuals and live-in couples is not violative of the fundamental rights enshrined in part
III of the Constitution of India. It is contended so for the reason that The Act does not
violate the equal protection doctrine of Article 14 [3.1], the test of reasonableness of Article
19 [3.2], and protects the right to life under Article 21 [3.3].

3.1 THAT THE ACT DOES NOT VIOLATE THE EQUAL PROTECTION DOCTRINE
ENSHRINED IN THE CONSTITUTION.
2. It is contended that Section 377 of the IPC does not violate one’s Right to Equality since.
It does not violate Article 14 of the constitution, [1.A.].

[3.1.A.] IT DOES NOT VIOLATE ARTICLE 14 OF THE CONSTITUTION

31
Arunima Baruah v. Union of India, (2007) 6 SCC 120.
32
Halsbury's Laws of England, 4th Edition, Volume 16.

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3. Sec 377 IPC do not violate the Equal Protection clause enshrined under Article 14 of the
Constitution and as such the aforementioned have been enacted to protect the interests of
sexual minorities.
4. Mere discrimination or inequality of treatment does not amount to discrimination within
the ambit of Article 14.33 For an act not to violate Article 14, there must not be any
substantive unreasonableness34 in it, it should not be manifestly arbitrary,35 and it should
fulfil the following two conditions:
(a) INTELLIGIBLE DIFFERENTIA [1.A.i] which distinguishes persons or things that are
grouped together from other left out in the group.36 This is done by examining the purpose
and policy of the act, which can be ascertained from its title, preamble37 and provisions.38
(b) RATIONAL39NEXUS [1.A.ii] that connects the object sought to be achieved by the act
with the intelligible differentia ascertained in (a).40 The reasonableness of the nexus is to
be ascertained with reference to the object of the legislation and not on the basis of any
moral considerations.41

[3.1.A.i.] THE CLASSIFICATION IS FOUNDED ON AN INTELLIGIBLE DIFFERENTIA

5. The principle of ‘equality before the law’ does not require absolute equality or equality
among unequals.42 Mere differentiation or inequality of treatment does not per se amount
to discrimination and before considering inequality of treatment, the object of the
legislation has to be considered.43
6. Just as difference in treatment of persons similarly situate leads to discrimination, so also
discrimination can arise if persons who are unequal, i.e. differently placed, are treated

33
D.D. BASU, SHORTER CONSTITUTION OF INDIA, 62, (13 th ed., vol. 1, 2001).
34
Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board and Ors., AIR 2007 SC 2276.
35
Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group, AIR 2006 SC 1489.
36
Pathumma v. State of Kerala, AIR 1979 SC 771.
37
Kausha PN v. Union of India, AIR 1978 SC 1457.
38
P. B. Roy v. Union of India, AIR 1972 SC 908.
39
Kedar Nath Bajoria v. State of W.B, AIR 1953 SC 404.
40
Hanif v. State of Bihar, AIR 1958 SC 731.
41
Garg RK v. Union of India, AIR 1981 SC 2138.
42
Devadasan v. Union of India, AIR 1964 SC 179.
43
Thiru Muruga Finanace v. State of Tamil Nadu, AIR 2000 Mad 137.

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similarly. In such a case failure on the part of the legislature to classify the persons who
are dissimilar in separate categories and applying the same law, irrespective of the
differences, brings about the same consequence as in a case where the law makes a
distinction between persons who are similarly placed.
7. A law providing for equal treatment of unequal objects, transactions or persons would be
condemned as discriminatory if there is absence of rational relation to the object intended
to be achieved by the law.44Article 14 forbids class legislation but does not forbid
classification which rests upon reasonable grounds of distinction.45
8. The Supreme Court, in its recent judgment in the matter of Suresh Kumar Koushal and
Anr. v. Naz Foundation and Ors46, held that those who indulge in carnal intercourse in the
ordinary course and those who indulge in carnal intercourse against the order of nature
constitute different classes and the people falling in the latter category cannot claim that
Section 377 suffers from the vice of arbitrariness and irrational classification.
9. It is contended that Section 377 is gender neutral and covers voluntary acts of carnal
intercourse against the order of nature irrespective of the gender of the person committing
the act. It does not criminalise a particular people or identity or orientation.
10. It merely identifies certain acts which if committed would constitute an offence and merely
talks about a particular mode of sexual activity, independent of the sex of people or sexual
orientation. Thus, Section 377 distinguishes sexual acts from unnatural sexual offences or
carnal intercourse against the order of nature.

[1.A.ii] THERE IS RATIONAL NEXUS BETWEEN CLASSIFICATION AND

OBJECTIVE SOUGHT

11. It is contended that the law can make and set apart the classes according to the needs and
exigencies of the society and as suggested by experience.47 If the legislative policy is clear
and definite and as an effective method of carrying out that policy a discretion is vested by

44
Venkateshwara Theatre v. State of Andhra Pradesh And Ors. 1993 SCR (3) 616.
45
Chiranjit Lal Chowdhary v. Union of India, AIR 1951 SC 41.
46
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.
47
Commissioner of Central Excise Jamshedpur v. Dabur (India) Ltd., (2005) 3 SCC 646.

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the statute upon a body of administrators or officers to make selective application of the
law to certain classes or groups of persons, the statute itself cannot be condemned as a
piece of discriminatory legislation.48
12. The objective behind Section 377 is to clearly demarcate sexual activities in consonance
with the order of nature and differentiate them from activities against the order of nature,
which is necessary in cases of allegation of child sexual abuse and for complementing
lacunae in the rape laws.49
13. The state looks to uphold public morality and decency and it is a compelling state interest
in this matter. It is contended that deletion thereof would well open flood gates of
delinquent behaviour.
14. If Section 377 is struck down, there will be no way the State can prosecute any crime of
non-consensual carnal intercourse against the order of nature or gross male indecency.
Thus, there is rational nexus between classification and objective sought in the case of
Section 377.

3.2. ARTICLE 19(1) (A) OF THE CONSTITUTION HAS NOT BEEN VIOLATED

15. The test laid down by this Hon’ble Court in Bennett Coleman & Co. & Ors v. Union Of
India & Ors50, is whether the direct and immediate impact of the impugned action is
on the freedom of speech and expression guaranteed under Article 19(1)(a) of the
Constitution. The respondents submit that the section 377 of the IPC does not impact upon
the freedom under Article 19(1) (a) as what is criminalised is only a sexual act. People will
have the freedom to canvass any opinion of their choice including the opinion that
homosexuality must be decriminalised.
16. Article 19(2) expressly permits imposition of restrictions in the interest of decency and
morality. Social and sexual mores in foreign countries cannot justify de-criminalisation of
homosexuality in India.

48
MP JAIN, INDIAN CONSTITUTIONAL LAW, 917 (7th ed. 2015).
49
Ibid
50
LCR p. 282.

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17. In the western societies the morality standards are not as high as in India. Indian society
considers homosexuality to be repugnant, immoral and contrary to the cultural norms of
the country. In 42ndreport of the Commission it was observed that Indian society by and
large disapproved of homosexuality, which disapproval was strong enough to justify it
being treated as a criminal offence even where the adults indulge in it in private.51

3.3. ARTICLE 21 OF THE CONSTITUTION HAS NOT BEEN VIOLATED

18. Article 21 envisages a right to life and personal liberty of a person, which not merely
guarantees the right to continuance of a person’s existence but a quality of life 52, and
therefore, State is casted upon a duty to protect the rights of the citizen in discharge of its
constitutional obligation in the larger public interest, guaranteed as a fundamental right
under Article 21 of the Constitution.53
19. In the present case, there has been no violation of Article 21 of the Constitution. To
establish the violation of Article 21, the Act should be subjected to the equality test of
Article 14 and test of reasonableness under Article 1954.
20. Article 14 ensures fairness55 and guarantees against arbitrariness.56 It provides that every
action of the government must be informed by reasons and guided by public interest. 57
21. Article 19 provides that a restriction can be characterized to be reasonable if it strikes a
balance between the fundamental right and restriction imposed thereon58.
22. As it has been proved above that the section 377 of IPC does not violate either the test of
Arbitrariness under Article 14 or the test of Reasonableness under Article 19, hence by the
principle laid down, it does not violate Article 21.

51
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
52
Ibid
53
Consumer Education and Research Centre and Ors. v. Union of India and Ors., AIR 1995 SC 922.
54
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
55
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101
56
Express Newspapers Pvt. Ltd. v. Union of India (UOI) and Ors., AIR 1986 SC 872.
57
MS Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160.
58
Om Kumar v. Union of India, AIR 2000 SC 3689.

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3.3.1. RIGHT TO PRIVACY IS NOT ABSOLUTE

23. It is submitted that the Right to privacy can be curtailed by following due process of law
and the Code of Criminal Procedure prescribes a fair procedure, which is required to be
followed before any person charged of committing an offence under Section 377 IPC can
be punished.
24. In Mr. X v. Hospital Z59 , this court observed, 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.
25. The right, however, is not absolute and may be lawfully restricted for the prevention of
crime, disorder or protection of health or morals or protection of rights and freedom of
others.
26. In Gobind v. State of M.P.60 the Court observed: “There can be no doubt that privacy-
dignity claims deserve to be examined with care and to be denied only when an important
countervailing interest is shown to be superior. If the Court does find that a claimed right
is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the
compelling state interest test.
27. In the instantaneous matter the Right to Privacy of homosexuals is restricted for protection
of state interest which does not suffer from any vice. Moreover, the freedom and rights of
others are of such importance that mere transgression of the right to privacy of a minority
would amount to a compelling state interest.
28. The opinion given by Justice Scalia and Justice Thomas in Lawrence v. Texas61 stated that
promotion of majoritarian sexual morality was a legitimate state interest. A miniscule
fraction of the country’s population constitute lesbians, gays, bisexuals or transgender and
in last more than 150 years less than 200 persons have been prosecuted for committing

59
(1998) 8 SCC 296.
60
1975 CrLJ 1111
61
539 U.S. 558 (2003).

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offence under Section 377 IPC and this cannot be made sound basis for declaring that
section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.62
29. The Respondent humbly submits that the Hon’ble Court may take the aforementioned into
consideration.

IV. WHETHER SECTION 377 OF LPC SHOULD BE DECLARED

UNCONSTITUTIONAL OR NOT?

30. It is humbly submitted before Hon’ble Supreme Court that section 377 of LPC should not
be declared unconstitutional as it has been already proved beyond doubt that section 377
does not infringes the fundamental rights guaranteed under Part III of the constitution.
Further [4.1] Presumption is always in favour of constitutionality of a statute. [4.2] Section
377 is the only defense against male rape [4.3] Section 377 only protection against animal
sexual abuse [4.4] Section 377 is in the interest of public health.

4.1. PRESUMPTION IS ALWAYS IN FAVOUR OF CONSTITUTIONALITY OF A

STATUTE

31. It is submitted that the presumption is always in the favour of constitutionality of an

enactment63. In examining the constitutionality of a statute it must be presumed that the
legislature understands and correctly appreciates the need of its own people, that its laws
are directed to problems made manifest by experience and that its discriminations are based
on adequate grounds.64
32. It is neither in doubt nor in dispute that Clause 1 of Article 13 of the Constitution of India
in no uncertain terms states that all laws in force in the territory of India immediately before
the commencement of the Constitution, in so far as they are inconsistent with the provisions
of Part III there, shall, to the extent of such inconsistency, be void

62
Supra 14.
63
Mohan Choudhary v. Chief Commissioner, Tripura, AIR 1964 SC 173.
64
Ramkrishna Dalmia v. Justice Tendolkar and Ors., AIR 1958 SC 538.

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33. Keeping in view the fact that the Act is a pre-constitution enactment, the question as regards
its constitutionality will, therefore, have to be judged as being law in force at the
commencement of the Constitution of India.65

4.2. SECTION 377 ONLY DEFENSE AGAINST MALE RAPE.

34. It is contended that the Indian legislation refuses to acknowledge the fact that men can be
victims of sexual violence. The Indian Penal Code is a glaring instance of this. The IPC
Sections 354 A, 354 B, 354 C and 354 D, dealing with sexual harassment, disrobing,
stalking and voyeurism, explicitly refer to men as the perpetrators of these crimes and
women as victims. Similarly, Section 375 of the IPC, which deals with the definitions of
rape and legal provisions against it, has no mention of rapes against men, it starts with “A
man is said to commit “rape” and goes on to define what rape would constitute in such a
case, rape of a woman. It fails to provide protection to men against these.

35. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013, by its very name excludes men from the ambit of sexual harassment. The sheer
ignorance towards this issue has more repercussions than one can expect it to have.

36. It is contended that the only way to bring any form of justice to these male survivors has at
times been charges under Section 377 of the IPC

4.3 SECTION 377 ONY PROTECTION AGAINST ANIMAL SEXUAL ABUSE.

37. Animal sexual abuse, often referred to as bestiality, is the sexual molestation of an animal
by a human. Animal sexual abuse may or may not include physical violence other than the
sexual violation; and may or may not result in physical injury to the animal. Animal sexual
abuse, like rape, is the eroticization of violence, control, and exploitation.A sexual
“relationship” between human and animal cannot be considered consensual.”66 Even at the

65
Keshavan Madhava Menon v. The State of Bombay, 1951CriLJ 680.
66
Piers Beirne, Professor of Criminology at the University of Southern Maine (1997).

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very low end of the confidence ranges the Dog Rape Rate would be very similar or higher
than to the human rape rate of 6-20 rapes per 100,000.67
38. In support of this cause it is argued that homosexuality is inherent at Birth itself and is
immutable. On the other hand if this ground is conceded, the chances are that another class
the so-called Zoophile will lay their claim to the decriminalization of the act of Bestiality
which also is covered by Section 377 IPC. This class of persons, it is claimed are born with
inherent inclination to have sex with animals in preference to human beings. Where do we
stop? Hence section 377 should not be stuck down.

4.4 SECTION 377 IS IN THE INTEREST OF PUBLIC HEALTH.

39. National Aids Control Organisation (NACO) states that the groups identified to be at
greater risk of acquiring and transmitting HIV infections due to a high level of risky
behaviour and insufficient capacity of power for decision making to protect themselves
from infection, generally described as ‘High Risk Groups’ (HRG), broadly include men
who have sex with men (MSM) 68
, among others. HIV/AIDS is transmitted through the
route of sex and specifically that of sex by men-with-men. Out of the estimated 5 million
people living with HIV in Asia in 2007, 3,80,000 were those who had been newly affected.
This significant increase was attributed, amongst others, to “unprotected sex” in which
unprotected anal sex between men in stated to be a potential significant factor.69
40. Anal intercourse between two homosexuals is a high risk activity, which exposes both the
participating individuals to the risk of HIV/AIDS, and this becomes even grave in case of
a male bisexual having intercourse with a female partner who may not even be aware of
the activity of her partner and is yet exposes to high risk of HIV/AIDS.70

67
Sexual Abuse of Street Dogs in India, “An analysis of the phenomenon, the law, 1st hand
Accounts” & press reportings
68
National AIDS Control Organisation, Annual Report 2011-12, page 9.
69
UN Report on Global AIDS Epidemic, 2008, pp 47-50.
70
National AIDS Control Organisation, Annual Report 2014-15.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly
requested that this Hon’ble Court may be pleased to adjudge and declare:

1. That SLP is not maintainable under Article 136 of the Constitution of Lexton.

2. That the punishment awarded to the Respondent No.1 should not be enhanced.

3. That Section 377 of the Lexton Penal Code is constitutional.

AND/OR

Pass any other order, direction or relief that it deems fit in the interest of Justice, Equity and
Good Conscience.

For this act of kindness, the Respondents shall duty bound forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

______________________________

______________________________

COUNSELS FOR RESPONDENTS

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