Petitioner Memorial S..docx

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MEMORIAL ON BEHALF OF PETITIONER Participant Code-N65

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

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NAVITAS, 2018 Before, THE HON’BLE SUPREME COURT OF GAUL WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF GAUL ANTICLIMAX PRODUCTION PVT. LTD. & ORS……………………..PETITIONER v. STATE OF BELGICA.................................................................................RESPONDENT CLUBBED WITH WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF GAUL ANTICLIMAX & ORS…………………………………….…………………….PETITONER v. UNION OF GAUL.………………………………………………………..….RESPONDENT

ON SUBMISSION TO THE SUPREME COURT OF GAUL

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

GOVERNMENT OF GAUL

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Commented [1]: Not the Petitioner

MEMORIAL ON BEHALF OF PETITIONER

TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................................................................. 11 INDEX OF AUTHORITIES......................................................................................................... 32 LIST OF ABBREVIATIONS ....................................................................................................... 53 STATEMENT OF JURISDICTION............................................................................................. 64 STATEMENT OF FACTS ........................................................................................................... 75 ISSUES RAISED .......................................................................................................................... 86 SUMMARY OF THE ARGUMENTS ......................................................................................... 97 ARGUMENTS ADVANCED .................................................................................................... 108 I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacridice de la Femme” IN THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE CONSTITUTION OF GAUL. ........................................................................................................................................ 108 [1.1] THAT THE RESTRICTION IMPOSED DOES NOT COMES UNDER THE AMBIT OF ARTICLE 19 (2).

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.................................................................................................................................................................................. 108 [1.2] THAT THE CONTENTION THAT THE RELIGIOUS SENTIMENTS OF THE PEOPLE ARE HURT HERE SERVES FALLACIOUS GROUND FOR THE BAN OF MOVIE. ...................................................................... 1210 [1.3] THAT THE STATE CANNOT BAN THE MOVIE PASSED BY THE CENSOR BOARD. ...................... 1311

II.THAT SECTION 377 OF THE GAULISH PENAL CODE IS UNCONSTITUTIONAL AND VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS, OUGHT TO BE STRUCK DOWN. .................................................................................................................... 1412 [2.1] Section 377 IS VIOLATIVE OF FUNDAMENTAL RIGHTS ENUMERATED IN PART III OF GAULISH CONSTITUTION: ................................................................................................................................................. 1413

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MEMORIAL ON BEHALF OF PETITIONER [2.2] THAT SECTION 377 OF GPC IS NOT IMMORAL. .................................................................................. 1614 [2.3] THAT THERE HAS BEEN AN ABUSE OF SECTION 377 OF GPC ........................................................ 1615 [2.4] SECTION 377 IPC AS AN INFRINGEMENT OF THE RIGHTS TO DIGNITY AND PRIVACY ........... 1716

PRAYER ................................................................................................................................... 2119

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MEMORIAL ON BEHALF OF PETITIONER

INDEX OF AUTHORITIES

Cases 1. Romesh Thappar v State of Madras AIR 1950 SC 124 2. S Rangarajan v P Jagjivan Ram 1989 SCR (2)204 3.Manohar Lal Sharma v Sanjay Leela Bhansali 4. Palko v Connecticut, 302 US 319 (1937). 5. F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145 6. Ushabehan Navichandran Trivedi v Bhagyalakhmi Chitra Mandir 7. Prakash Jha Production v Union Of India 8. Devidas Ramachandra Tuljapurkar Vs. State of Maharashtra (2015) 9. Jayalakshmi v. The State of Tamil Nadu (2007) 10. Egan v Canada (1995) 29 CRR (2nd) 79 at 106. 11.Prem Shankar Shukla v. Delhi Administration. 12. Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others. 13. Govind v. State of M.P. 14. Thornburgh v. American College of O and G, 476 US 747 (1986)

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MEMORIAL ON BEHALF OF PETITIONER Cases Devidas Ramachandra Tuljapurkar v State of Maharashtra (2015) 6 SCC 1 ............................... 14 District Registrar & Collector, Hyderabad v. Canara Bank(2004) 5 ALD 475........................... 19 Egan v Canada (1995) 29 CRR (2nd) 79 at 106........................................................................... 17 F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145 ............... 12 Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others (1981) 1 SCC 608. ................................................................................................................................................... 18 Govind v. State of M.P(1975) 2SCC 148. ..................................................................................... 18 Jayalakshmi v. The State of Tamil Nadu (2007)SCC On9 mad 3264 ........................................... 17 Maneka Gandhi v Union of India (1978) 1 SCC 248. .................................................................. 19 Manohar Lal Sharma v Sanjay Leela Bhansali(2018) SCC 770 .................................................. 12 Palko v Connecticut, 302 US 319 (1937)...................................................................................... 12 Prakash Jha Production v Union Of India(2011) 8 SCC 372. ..................................................... 13 Prem Shankar Shukla v. Delhi Administration(1980) 3 SCC 526. ............................................... 17 Romesh Thappar v State of Madras AIR 1950 SC 12 ................................................................... 10 S Rangarajan v P Jagjivan Ram 1989 SCR (2)20 ........................................................................ 11 Thornburgh v. American College of O and G, 476 US 747 (1986 ............................................... 19 Ushabehan Navichandran Trivedi v Bhagyalakhmi Chitra Mandir............................................ 13 Statutes 377. Unnatural offence. Indian Penal Code, 1872 ........................................................................ 15 Constitution of India 1950, art 14. ................................................................................................ 15 Constitution of India 1950, art .................................................................................................... 15

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MEMORIAL ON BEHALF OF PETITIONER LIST OF ABBREVIATIONS 1. AIR -All India Rank 2. SC- Supreme Court Cases 3. SCC- Supreme Court Cases 4. SCR- Supreme Court reporter 5. Ltd. - Limited 6. Co. – Corporation 7. Ors.-Others. 8. Art.-Article 9. Pvt. -Private. 10. GPC- Gaul Penal Code. 11. GOI- Government of India 12. GBFC- Gaul Board of Film Certificate.

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MEMORIAL ON BEHALF OF PETITIONER STATEMENT OF JURISDICTION

In the present Writ Petition (civil) No.312 of 2018 under article 32 of the Constitution of Gaul concerning the matter Anticlimax Production Pvt. Ltd. & Ors. v State of Belgica & Ors. The petitioner humbly submits to the jurisdiction of this Hon’ble Supreme Our of Gaul. In the present Writ Petition (criminal) No.213 of 2018 under article 32 of the Constitution of Gaul concerning the matter Anticlimax & Ors. v Union of Gaul, the petitioner humbly submits to the jurisdiction of this Hon’ble Supreme Court of Gaul. The present memorandum sets forth the facts, contentions and arguments in the present case.

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MEMORIAL ON BEHALF OF PETITIONER STATEMENT OF FACTS 

Anticlimax, director-producer of Gaul decided to recreate the story of Gaulish King Androgynix and his wife, Queen Daffiris. This was when Whosmoralsarelastix, hired, Agent Dubbelosix, he came back with information, apparently, Anticlimax had decided on exploring the theme of homosexuality. When Anticlimax revealed the first poster of the movie. The poster got mixed responses. The worst response was from the State of Belgica.

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While all of this was happening, another burning debate in Gaul was resurfacing. In 2009, the High Court of Lutetia had repealed Section 377 of the Gaulish Penal Code (GPC). However, things had changed in 2013 when the Supreme Court of Gaul overturned the High Court judgment and reinstated Section 377.

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Many same sex couples who had earlier kept their sexual orientation a secret started coming out. These activities infuriated the fringe groups. The GCS filed a petition before the Supreme Court of Gaul seeking a ban on the movie. The petition was dismissed by the Supreme Court stating that the decision on movie release should be taken by GBFC.

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Finally, the film went to the GBFC for approval. The panel suggested certain amendments. Anticlimax made the amendments. However, the situation remained unchanged in Belgica and the Government of Belgica, issued an order banning the public exhibition of the movie. Anticlimax then filed a petition before the Supreme Court under Article 32 challenging the ban on his film by the state of Belgica.

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By this time, the issue of LGBTQ rights was also gaining ground and so Anticlimax with few others filed a writ petition demanding a repeal of the detested Section 377.

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MEMORIAL ON BEHALF OF PETITIONER ISSUES RAISED I. WHETHER THE BAN ON THE EXHIBITION OF THE FILM “Le Sacrifice de la Femme” IN THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE CONSTITUTION OF GAUL.

II. WHETHER SECTION 377 OF GAULISH PENAL CODE IS UNCONSTITUTIONAL AND VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS, OUGHT TO BE STRUCK DOWN. .

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MEMORIAL ON BEHALF OF PETITIONER SUMMARY OF THE ARGUMENTS I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacrifice de la Femme” IN THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE CONSTITUTION OF GAUL. The fundamental right Art. 19(1) (a) guarantees to all the citizen freedom of speech and expression. Under Art.19 (2), however the state is not prevented from making a law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the public order, decency or morality defamation or incitement to an offence imposing in the interests of general public, reasonable restriction on the exercise of above right. However, the ban on the movie does not comes under the reasonable restriction imposed under 19 (2). II. THAT SECTION 377 OF GAULISH PENAL CODE IS UNCONSTITUTIONAL AND VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS, OUGHT TO BE STRUCK DOWN. Section 377 of the Gaulish Penal Code is violative of Fundamental Rights guaranteed by the Constitution of Gaul. Sexual orientation is no ground for the discrimination also, morality does not serves as the strong ground for the justification of the abrasive nature of the sec.377 as it violate the very basis to live one’s life with dignity, as it infringes one’s right to live with dignity.

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MEMORIAL ON BEHALF OF PETITIONER ARGUMENTS ADVANCED I. THAT THE BAN ON THE EXHIBITION OF THE FILM “Le Sacrificeridice de la Femme” IN THE STATE OF BELGICA IS VIOLATIVE OF ARTICLE 19 (1) OF THE CONSTITUTION OF GAUL. It is humbly submitted before the hon’ble Supreme Court of Gaul that the ban on the exhibition of the film “Le Sacrifice de la Femme” in the state of Belgica is not violative of article 19 (1) of the constitution of Gaul . [1.1] THAT THE RESTRICTION IMPOSED DOES NOT COMES UNDER THE AMBIT OF ARTICLE 19 (2). It is humbly submitted before the Hon’ble Supreme Court of Gaul that the ban on the exhibition of the movie is violative of the fundamental right to freedom of speech and expression because the ban does not put reasonable restriction. Art. 19 (1) (a) guarantees to all the citizen freedom of speech and expression. Under Art.19 (2), however the state is not prevented from making a law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the public order, decency or morality defamation or incitement to an offence imposing in the interests of general public, reasonable restriction on the exercise of above right. In the case of Romesh Thapar v. State of Madras1 the court defined public order “public order” as that “state of tranquility which prevails among the members of a political society” and also held that ordinary or local beaches of public order were no ground for restricting the freedom of speech. In the case in hand only particular sect of people that is the conservatives Gaul in Belgica who were protesting against the movie.

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Romesh Thappar v State of Madras AIR 1950 SC 124

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MEMORIAL ON BEHALF OF PETITIONER The counsel also emphasizes on the fact that the fundamental right of free expression guaranteed under the Gaulish constitution covers even the medium of movies, if the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and procession or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression that the opinion on the film ought not to be rested on the isolated passages disregarding the main theme and its message; here in the present case famous director, Anticlimax just wants to give the message of revolutionary the social change in state of Gaul. Freedom of expression, which is legitimate and constitutionality protected cannot be held to ransom by an intolerant group of people. The fundamental freedom under article 19(1) (a) can be reasonably restricted only for the purposes mentioned in article 19 (2) and the restriction must be justified on the anvil of necessity and not the quirks and of policies and operations is not a ground for restricting expression. The present case after the expert committee made the significant changes as well as the panel was all praises for the film and moreover the film did not even claimed about historical authenticity. The GBFC thought this would greatly placate the conservative Gauls since it attributes honour, bravery and virtue to Queen Daffiris. Indeed just because of the fear of situation turning worst and because of the inefficiency of the authority of state of Bbeligica to control the situation and maintain law and order is unfair. In case of S. Rangarajan v. P. Jagjivan Ram2 the three judge bench S.C. headed by Justice KJ Shetty upheld the right of the filmmaker to make movies and ruled that freedom of speech and expression which is legitimate cannot be held

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S Rangarajan v P Jagjivan Ram 1989 SCR (2)204

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MEMORIAL ON BEHALF OF PETITIONER to ransom by an intolerant group of people. The state cannot plead its inability to handle the hostile audience problem. It is obligatory duty to prevent it and protect the freedom of expression. In the case of Manohar Lal Sharma v. Sanjay Leeela Bhansali & others3. It was held the by the bench, headed by Chief Justice Dipak Misra, favour of the Padmaavaat makers. “Creative freedom, freedom of speech and expression can’t be guillotined... artistic freedom has to be protected.” Misra said it is the state’s duty and obligation to maintain law and order, and it cannot use its machinery to prohibit a film’s exhibition citing risk to public order. Hence, it is the ban on the exhibition of the movie is violative of fundamental right guaranteed by the Gaulish constitution. [1.2] THAT THE CONTENTION THAT THE RELIGIOUS SENTIMENTS OF THE PEOPLE ARE HURT HERE SERVES FALLACIOUS GROUND FOR THE BAN OF MOVIE. The Counsel further states that the right to freedom of speech and expression has been described as the touchstone of individual liberty, the matrix, the indispensable condition of nearly every form of freedom.4In F.A. Picture International v Central Board of Film Certification5, it was held that artists, writers, playwrights and film makers are the eyes and the ears of a free society. They are the veritable lungs of a free society because the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen to speak. Our constitutional democracy guarantees the right of free speech and that right is not conditional upon the expression of views which may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence, those who express views which are critical of prevailing social reality have a valued position in

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Manohar Lal Sharma v Sanjay Leela Bhansali(2018) SCC 770. Palko v Connecticut, 302 US 319 (1937). 5 F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145. 4

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MEMORIAL ON BEHALF OF PETITIONER the constitutional order. History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon. Sometimes these opinion may have the clash with the sentiment of different people with different believes and feeling, living in the society but the restriction can’t be imposed just on the basis of this ground. In the case in hand when the film went for approval to GBFC the expert committee consist of 2 veteran historian had all praises for it and also considered it as a work of fiction as well as the film did not even claim historical authentication. Moreover, the most significant change made and the title of the movie was altered. Thus, on the part of the appellant all the precautions was taken so as to avoid the controversy and deprave himself of the onus of hurting anyone sentiments or feeling. Indeed, in the case of Ushaben Navichandran Trivedi v. Bhagyalakhmi Chitra Mandir 6, it was held that the movies are meant only for those who are willing to see it, no one is forcing anyone to see it Thus, the contention that the movie hurts the religious feeling or the sentiments of sect of people holds no valid ground. [1.3] THAT THE STATE CANNOT BAN THE MOVIE PASSED BY THE CENSOR BOARD. The Censor Board is supposed to be a large expert body carefully constituted to cater to the need of different segments of the society. The procedure for grant of certificate of exhibition to a films quiet elaborate. So, its decision must be given full weight. According to the case Prakash Jha Production v Union of Gaul7 , the Supreme Court ruled that state governments cannot ban a film, which has been cleared by the censor board for public screening, on the apprehension that it could

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Ushabehan Navichandran Trivedi v Bhagyalakhmi Chitra Mandir . Prakash Jha Production v Union Of India(2011) 8 SCC 372.

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MEMORIAL ON BEHALF OF PETITIONER cause law and order problem. The bench of Justice M. K. Sharma and A. R. Dave observed that “it is the state duty the maintain law and order effectively and meaningfully”. The filmmaker have right to exhibit the film. in pursuance of the certificate of exhibition obtained by them. The film is not publicly exhibited. that is to say it is not being -shown to the one "who do not want to see it; it is - shown on payment; People have to use their volition to see the picture. There is no compulsion to see the flim. In consonance with the authorities sited it can be easily concluded that the step taken by the Government of Belgica to ban the movie is arbitrary and autonomous and defies the rationale of having statutory expert body .It is humbly submitted before this court that freedom of speech and expression as enshrined under Article 19(1) (a) of the Constitution is not absolute in view of Article 19(2) of the Constitution. We reiterate the said right is a right of great value and transcends and with the passage of time and growth of culture, it has to pave the path of ascendancy, but it cannot be put in the compartment of absoluteness. There is constitutional limitation attached to it.8 II.THAT SECTION 377 OF THE GAULISH PENAL CODE IS UNCONSTITUTIONAL AND VIOLATIVE OF PART 3 OF THE CONSTITUTION OF GAUL, AND THUS, OUGHT TO BE STRUCK DOWN. It is humbly submitted before the Hon’ble Supreme Court of Gaul that Section 377 of the Gaulish Penal Code is violative of Fundamental Rights. This contention is based on the following submissions: [2.1] Section 377 IS VIOLATIVE OF FUNDAMENTAL RIGHTS ENUMERATED IN PART III OF GAULISH CONSTITUTION:

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Devidas Ramachandra Tuljapurkar v Vs. State of Maharashtra (2015) 6 SCC 1.

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MEMORIAL ON BEHALF OF PETITIONER The counsel argues that on account of section 377 covering sexual acts between consenting adults in private, it infringes the fundamental rights guaranteed by the Constitution of Gaul. Homosexuality is no longer treated as a disease or disorder and near unanimous medical and psychiatric expert opinion treats it as just another expression of human sexuality. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of Gaul.9 Further, it has been submitted on behalf of the appellant that unnatural offences—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.10 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 Constitution of Gaul. It is mentioned in our Constitution that State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.11 The expression “sex” as used in Article 15 cannot be read restrictive to “gender” but includes “sexual orientation” and, thus read, equality on the basis of sexual orientation is implied in the said fundamental right against discrimination. The Appellant argues that criminalization of predominantly homosexual activity through Section 377 IPC is discriminatory on the basis of sexual orientation and, therefore, violative of Article 15. Sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. It is further to be stated that the prohibition against homosexuality in Section 377 GPC curtails or infringes the basic freedoms regarding freedom of speech and expression in that, an individual's

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Constitution of India 1950, art 14.Art. 14, Gaulish Constitution. 377 . Unnatural offence. IndianGaulish Penal Code, 1872. 11 Constitution of India 1950, art 15.Art.15, Gaulish Constitution. 10

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MEMORIAL ON BEHALF OF PETITIONER ability to make personal statement about one's sexual preferences, right of association/assembly and right to move freely so as to engage in homosexual conduct are restricted and curtailed. Thus, Section 377 is violative of Article 19(1) (a). The English law was reformed in Britain by the Sexual Offences Act, 19, which de-criminalized homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee. The Committee advising the Parliament had recommended in 1957 repeal of laws punishing homosexual conduct. [2.2] THAT SECTION 377 OF GPC IS NOT IMMORAL. The counsel on behalf of the appellant contends that section 377 GPC is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of procreation only. Any non-procreative sexual activity is thus viewed as being “against the order of nature”. The submission is that the legislation criminalizing consensual oral and anal sex is outdated and has no place in modern society. Section 377's legislative objective is based upon stereotypes and misunderstanding that are outmoded and enjoys no historical or logical rationale which render it arbitrary and unreasonable. Furthermore, morality by itself cannot be a valid ground for restricting the right under Articles 14 and 21. Public disapproval or disgust for a certain class of persons can in no way serve to uphold the constitutionality of a statute. In any event, abundant material has been placed on record which shows that the Indian society is vibrant, diverse and democratic and homosexuals have significant support in the population. [2.3] THAT THERE HAS BEEN AN ABUSE OF SECTION 377 OF GPC The Appellant claims to have been impelled to bring this litigation in public interest on the ground that discriminatory attitudes exhibited by state agencies towards gay community, MSM or transgendered individuals, under the cover of enforcement of Section 377 IPC, as a result of which basic fundamental human rights of such individuals/groups (in minority) stood denied and they were subjected to abuse, harassment, assault from public and public authorities.

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MEMORIAL ON BEHALF OF PETITIONER By criminalizing private, consensual same-sex conduct, Section 377 GPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities. Section 377 GPC thus, creates a class of vulnerable people that is continually victimized and tortured by the provision. It has been submitted that the fields of psychiatry and psychology no longer treat homosexuality as a disease and regard sexual orientation to be a deeply held, core part of the identities of individuals. Further it is reverentially submitted that in Jayalakshmi v. The State of Tamil Nadu12 in which a eunuch had committed suicide due to the harassment and torture at the hands of the police officers after he had been picked up on the allegation of involvement in a case of theft. There was evidence indicating that during police custody he was subjected to torture by a wooden stick being inserted into his anus and some police personnel forcing him to have oral sex. The person in question immolated himself inside the police station on 12.6.2006 and later succumbed to burn injuries on 29.6.2006. The compensation of Rs. 5, 00,000/- was awarded to the family of the victim, states the magnitude and range of exploitation and harsh and cruel treatment experienced as a direct consequence of Section 377 IPC. [2.4] SECTION 377 IPC AS AN INFRINGEMENT OF THE RIGHTS TO DIGNITY AND PRIVACY Dignity as observed by Justice L'Heureux-Dube, is a difficult concept to capture in precise terms 13

[Egan v. Canada, (1995) 29 CRR (2nd) 79 at 106]. At its least, it is clear that the constitutional

protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he

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Jayalakshmi v. The State of Tamil Nadu (2007)SCC On9 mad 3264. Egan v Canada (1995) 29 CRR (2nd) 79 at 106.

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MEMORIAL ON BEHALF OF PETITIONER or she sees fit. At the root of the dignity is the autonomy of the private will and a person's freedom of choice and of action. Justice V.R. Krishna Iyer observed that the guarantee of human dignity forms part of our constitutional culture14.In Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others15, Justice P.N. Bhagwati said that right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.” Article 17 of the International Covenant on Civil and Political Rights (to which India is a party), refers to privacy and states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honor and reputation .The European Convention on Human Rights also states that: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.” The right to privacy thus has been held to protect a “private space in which man may become and remain himself. The ability to do so is exercised in accordance with individual autonomy. Mathew J. in Govbind v. State of M.P. 16 referring to the famous Article, “The Right to Privacy” by Charles Warren and Louis D. Brandeis, (4 HLR 193), stressed that privacy - the right to be let alone - was

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Prem Shankar Shukla v. Delhi Administration(1980) 3 SCC 526. Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others (1981) 1 SCC 608.. 16 Govind v. State of M.P(1975) 2SCC 148.. 15

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MEMORIAL ON BEHALF OF PETITIONER an interest that man should be able to assert directly and not derivatively from his efforts to protect other interests. The privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one's sexuality is at the core of this area of private intimacy. If, in expressing one's sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy. The Supreme Court has acknowledged that the sphere of privacy deals with persons and not places. Explaining this concept in District Registrar & Collector, Hyderabad v. Canara Bank1718 Justice Lahoti referred to observations of Justice Stevens in Thornburgh v. American College of O and G, 476 US 747 (1986)19, that “the concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole”. Justice Lahoti, also referred to an observation of a commentator in (1976) 64 Cal. L. Rev 1447, that privacy centres around values of repose, sanctuary and intimate decision. Repose refers to freedom from unwanted stimuli; sanctuary to protection against intrusive observation; and intimate decision, to autonomy with respect to the most personal of life choices. Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalizes consensual sexual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in “The Indian Constitution - Cornerstone of a Nation”, “they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India”. In the words of Justice

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District Registrar & Collector, Hyderabad v. Canara Bank(2004) 5 ALD 475. District Registrar & Collector, Hyderabad v. Canara Bank

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Thornburgh v. American College of O and G, 476 US 747 (1986)

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MEMORIAL ON BEHALF OF PETITIONER V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armor. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen20.

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Maneka Gandhi v Union of India (1978) 1 SCC 248.

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MEMORIAL ON BEHALF OF PETITIONER PRAYER

Therefore in the light of the facts of the case, issues raised, arguments advanced and authorities cited this Hon’ble court may be pleased to adjudge and declare that:

In the case of Anticlimax Production Pvt. Ltd. & Ors. v. State of Belgica & Ors.

The ban on the exhibition of the film ‘Le Sacrifice de la Femme’ is violative Art. 19 (1) of Gaulish Constitution. In the case of Anticlimax & Ors. v. Union of Gaul: Sec.377 of the Gaulish Penal Code is unconstitutional and violative of Part 3 of Constitution of Gaul and ought to be struck down.

And may pass any other order in favor of the Respondent that it may deem fit in the interest of justice, equity and good conscience.

SD/Counsel for Petitioner.

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Commented [2]: This is not your prayer. prayer is seeking something from them. Like Remove the ban or compensation.