Professional Documents
Culture Documents
SHANTARAM
V.
-PETITIONER-
-RESPONDENT-
By:
Dendup Wangmao
Irfan Md. Haji
Shonwang Konyak
Vasu Vibhav Purohit
TABLE OF CONTENTS
INDEX OF AUTHORITIES
LIST OF ABBREVIATIONS
STATEMENT OFJURISDICTION..........................................................................................
STATEMENT OF FACTS..........................................................................................................
ISSUES RAISED
SUMMARY OF ARGUMENTS
INDEX OF AUTHORITIES
STATUTES REFERRED
1. THE CONSTITUTION OF INDIA
2. INDIAN PENAL CODE, 1860
CASES REFERRED
1. NAZ FOUNDATION (INDIA) TRUST V. GOVERNMENT OF NCT OF DELHI
AND ORS.
2. KHANU VS EMPEROR
3. ATTORNEY GENERAL OF GEORGIA V. HARDWICK
LIST OF ABBREVIATIONS
1.
2.
3.
4.
&And
AIR...All India Reporter
.Section
Honble..Honorable
5. Ors..Others
6. IPC...Indian Penal Code
7. Cr.PcCriminal Procedure Code
STATEMENT OF JURISDICTION
The Respondent submits this memorandum for the petition filed before this Honorable Court. It
sets forth the facts and the laws on which the claims are based. The Parties shall accept any
Judgment of the Court as final and binding upon them and shall execute it in its entirely and in
good faith.
STATEMENT OF FACTS
1. MARIAH and PETER are the founders of an NGO named QRO (Queers Rights
Organization) in city of Shombay, INDUS, a south Asian country of the world.
2. The NGO is working for the upliftment of LGBT people, and its functioning includes
organizing seminars, awareness programmes for LGBT community along with health
care activities, especially for the prevention & treatment of AIDS and other STDs.
(Sexually transmitted Diseases).The NGO has been organizing awareness campaigns for
Queer rights since its establishment in 2009.
3. In early 2014, they decided to organize a nationwide campaign to promote health
awareness against sexually transmitted diseases, including AIDS, and to promote safe sex
among people in general.
4. In order to bring wide publicity for their forthcoming campaign, they tied up with various
social media websites, including (www.Queerchat.com), where many LG BT people were
the members, and frequently socialize by way of online chats, etc.
5. On the decided day, they organized the campaign for awareness & prevention of STDs
including AIDS, and distributed condoms to the attendees. The attendees include, people
from both within and outside Queer community.
6. A Local religious leader, SHANTARAM who attended the campaign, filed a complaint
against the founders of the NGO claiming that they are committing abetment of offence
under section 377 of Indus Penal Code. As a result, many attendees to the function along
with MARIAH and PETER were arrested for the offence of abetment and criminal
conspiracy.
7. In course of arrest, police also received information that many of the attendees have met
on social websites, which has acted as a bridge between the organizers of campaign and
the attendees to the function. This has further resulted in arrest of developers of LGBT
website. (www. Queerchat.com).
8. When the accused were taken to the magistrate for bail, it was refused to all, on the fact
that S.377 of Indus Penal Code is a non-bailable offence.
ISSUES RAISED
THE FOLLOWING ISSUES HAVE BEEN RAISED FOR ADJUDICATION BEFORE THE
HONBLE COURT-
SUMMARY OF ARGUMENTS
And also according to Section 41 of Criminal Procedure Code, police can arrest a person
against whom a reasonable complaint has been made.
But in this case, the complaint was not reasonable because the NGO was working for the
benefit of society and upliftment of the LGBT community.
And according to the National AID Control Organization (NACO), they can freely
distribute condom in general and there is no question of harming the society in general.
UNNATURAL ACTS.
4. WHETHER THE CHARGES OF ABETMENT AND CONSPIRACY ARE
LEGALLY JUSTIFIED?
No the charges of abetment and conspiracy are not legally justified as none of the
attendees committed any act that constituted sec 377 nor any injury to the aforesaid
petitioner, the motive was as far as facts of the case is concern that the founders of the
NGOs and the developers of the LGBT website were organizing a campaign for
awareness and prevention of STDs including AIDS, and distributed condoms to the
attendees of the same. The basic aim was to promote safe sex among people in general.
For, the commitment of criminal abetment and conspiracy, the essential elements is
mensrea whereas in this case, no such intention has been found conversely, they were
acting in bonafide intention and helping the out casted LGBT community.
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criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof.
Explanation - It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.
Even though the illegal act is immaterial to constitute criminal conspiracy, Mariah and
peter were wrongfully held as it was not justified.
6. WHETHER MAGISTRATE WAS JUSTIFIED IN REJECTING THE BAIL?
As far as section 377 of Indian penal code says about the unnatural offences which is a
cognizable, non-bailable, non-compoundable and triable by a magistrate of first class.
Mere intention to commit the crime is not enough to convict the accused. The magistrate
is justified in denying the bail application to the accused.
However, in this case regarding the application of section 377 of unnatural offences the
magistrate was not justified as the section mention above is not applicable.
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the website was to bridge the gap among LGBT community and queer community also
between the organizers of campaign and the attendees to the function. They had no
intention of abetment of unnatural offences as classified under sec 377 of Indian penal
code nor had any motive of criminal conspiracy with the founders of (Queers Rights
Organization).
It has been submitted that Section 377s legislative objective of penalizing unnatural
sexual acts has no rational nexus to the classification created between procreative and
non- procreative sexual acts, and is thus violative of Article 14 of the Constitution of
India.
The Court made it explicit that where an Act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is, therefore,
violative of Article 14.
Sexual orientation is a ground analogous to sex and that discrimination on the basis of
sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the
notion of horizontal application of rights. In other words, it even prohibits discrimination
of one citizen by another in matters of access to public spaces. Therefore, discrimination
on the ground of sexual orientation is impermissible even on the horizontal application
of the right enshrined under Article 15.
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includes sexual orientation4and, thus read, equality on the basis of sexual orientation is
implied in the said fundamental right against discrimination.
RESPONDENTS
HONBLE COURT
TO BE
4 An individual has a right to choose his/her sexual orientation, he can decide what
sexual orientation he prefers to be.
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THE COURT
MAY ALSO BE PLEASED TO PASS ANY OTHER ORDER IN THE LIGHT OF JUSTICE,
AND
________________________________________________________
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LORDSHIP,
THE