SHARDA UNIVERSITY 3RD INTRA MOOT COMPETITION - 2014

SHANTARAM

V.

MARIAH And PETER

-PETITIONER-

-RESPONDENT-

MEMORIAL DRAWN AND SUBMITTED ON BEHALF OF THE PETITIONER

SHANTARAM

By:

Dendup Wangmao
Irfan Md. Haji

Shonwang Konyak
Vasu Vibhav Purohit

TABLE OFCONTENTS

INDEX OF AUTHORITIES
LIST OF ABBREVIATIONS.
STATEMENT OFJURISDICTION..........................................................................................
STATEMENT OF FACTS..........................................................................................................
ISSUES RAISED
SUMMARY OF ARGUMENTS
PRAYER

INDEX OFAUTHORITIES

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.
BOOKS REFERRED
1. OXFORD ENGLISH DICTIONARY
2. WHARTON LAW LEXICON

LIST OF ABBREVIATIONS

1.
2.
3.
4.
5.

&And
AIR...All India Reporter
.Section
Honble..Honorable
Ors..Others

6. IPC...Indian Penal Code

7. Cr.PcCriminal Procedure Code

STATEMENT OF JURISDICTION

The Petitioner 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-

1. WHETHER SHANTARAM HAS A LOCUS- STANDI TO FILE THE COMPAINT?

2. WHETHER ARREST IN THIS CASE IS LEGAL AND CONSTITUTIONAL?
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3. WHETHER SECTION 377 OF INDUS PENAL CODE WILL BE APPLICABLE

TO THE ARRESTEES?
4. WHETHER THE CHARGES OF ABETMENT AND CONSPIRACY ARE
LEGALLY JUSTIFIED?
5. WHETHER LIASONING WITH DEVELOPERS OF A QUEER WEBSITE
AMOUNTS TO CRIMINAL CONSPIRACY?
6. WHETHER MAGISTRATE WAS JUSTIFIED IN REJECTING THE BAIL?
7. WHETHER DISCRIMINATION IN ARREST OF DEVELOPERS OF QUEER
WEBSITE ONLY, AMOUNTS TO DISCRIMINATION UNDER ARTICLE 14 & 15
OF THE CONSTITUTION?
8. WHETHER ARREST AMOUNTS TO INFRINGEMENT OF ARTICLE 19 AND 21
OF THE CONSTITUTION?

SUMMARY OFARGUMENTS

1. WHETHER SANTHARAM HAS A LOCUS- STANDI TO FILE THE

COMPLAINT?
Yes, Santharam has a locus- standi to file a complaint. At first, locus- standi says that a
complaint (writ) can be filed by an effected person. And when, a persons fundamental
right is infringed he can file a writ in the court.
In this case, the Right to Religion under Article 25 (1) (a) of the Constitution of India is
violated. This Article 25 (1) (a) says that, Nothing in this article shall affect the

operation of any existing law or prevent the state from making the law: (a) regulating or
restricting any economic, financial, political or other secular activities which may be
associated with religious practice
This right is infringed by the distribution of condom because it will encourage sexual
activity and foster the idea that premarital sex is acceptable which is morally against the
teachings of any religion.
It will lead to adultery. And it is clearly written in the holy book of the Christians i.e.
Bible under the Ten Commandment written in the book of Exodus 20: 14. It is the 7th
commandment which state Thou shall not commit adultery.
A survey by Maharashtra District AIDS Control Society (MDACS) in the year 2010
reveals that people of 15-25 age groups is more affected as compared to others. Youth is
vulnerable because of the lack of awareness and indulge in risky behavior.

2.

WHETHER ARREST IN THIS CASE IS LEGAL AND CONSTITUTIONAL?

Yes, the arrest in this case is legal and constitutional. The arrest is legal because Section
377 of the Indus Penal Court is applicable to the case. The Supreme stroked down the
judgments of the Delhi High Court in the case of Naz Foundation (India) Trust vs.,
Govt. of NCT of Delhi and Ors.1 That Sec 377(Unnatural Offences) is a crime.
Unnatural Offences: According to Section 377 of IPC, 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.
And, offences under Section 377 are a non-bailable, non-compoundable and cognizable
offence.

1 Writ Petition (Civil) No. 4755, 2010

Cognizable Offence: According to Criminal Procedure Code, Section 41 says that a

Police officer may without an order from Magistrate and without a warrant arrest any
person who has been concern in any cognizable offence.
The formation of the social networking site i.e. queerchat.com for LGBT act as a
platform where they are brought into contact with each other and thus, a relation may
start between them. And this, led to the suspect that the NGO by forming the networking
site provided an incentive for the abetment of Section 377 and which is a crime. And
since, Section 377 is a cognizable offence; a mere suspect can also amount to arrest
without warrant.
On the other hand, the distribution of condom led to the infringement of Right to Religion
under Article 25 (2) (a) of the Constitution of India.

3. WHETHER SEC 377 OF INDUS PENAL CODE WILL BE APPLICABLE TO

THE ARRESTEES?
Yes, Section 377 of the Indus Penal Code is applicable to the arrestees because the
formation of the social networking site i.e. queerchat.com for LGBT act as a platform
where they are brought into contact with each other and a relation may start between
them. This will create an unnatural offence as defined in sec 377 of IPC.
4. WHETHER THE CHARGES OF ABETMENT & CONSPIRACY ARE LEGALLY
JUSTIFIED?
Yes, the charges of abetment & conspiracy are legally justified.
Abetment according to Section 107 of IPC says that, a person abets the doing of a thing
who:1) Instigates any person to do that thing.
2) Engages with other people in any conspiracy for doing of that thing.
3) Intentionally adding the doing of that thing.

Conspiracy according to Sec. 120 A of IPC says that when two or more persons agree to
do, or cause to be done:1) An illegal act, or
2) An act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy.
The formation of the social networking site i.e. queerchat.com for LGBT act as a
platform where they are brought into contact with each other and thus, a relation start
between them. And so, the NGO by forming the networking site provided an incentive for
the abetment of Section 377 and which is a crime.
And also the main and common objective of the formation social network site was to
promote the LGBT community leading to unnatural offence which is a crime and thus the
NGO along with the founders of the social networking site committed conspiracy.
5. WHETHER LIASONING WITH DEVELOPERS OF A QEER WEBSITE
AMOUNTS TO CRIMINAL CONSPIRACY?
Yes, the liasoning with developers of a qeer website amounts to criminal conspiracy.
Liasoning means communication and cooperation between two parties. Both the founders
of NGO (Mariah and Peter) along with the members of Queer chat community had the
common objective to promote the LGBT community through the website.
6. WHETHER MAGISTRATE WAS JUSTIFIED IN REJECTING THE BAIL?
Yes, the magistrate was justified in rejecting the bail because Section 377 of IPC is
applicable to this case and the offences under Section 377 are non-bailable.
7. WHETHER DISCRIMINATION IN ARREST OF DEVELOPERS OF QUEER
WEBSITE ONLY, AMOUNTS TO DISCRIMINATION UNDER ARTICLE 14 & 15
OF THE CONSTITUTION?

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No, discrimination in arrest of developers of Queer website only, will not amount to
discrimination under Article 14 & 15 of the constitution.
There is no discrimination on the ground of sex orientation. It is an illegal site because
the Supreme Court verdict in 2013, states that the LGBT community is illegal.
Instead, the developers of the qeer website are the ones committing crime by developing
a site that is against the law.

8. WHETHER ARREST AMOUNTS TO INFRINGEMENT OF ARTICLE 19 AND 21

OF THE CONSTITUTION?
No, the arrest does not amount to infringement of article 19 and 21 of the constitution
because the arrest was not for the organization of campaign but for the abetment of
Section 377 of IPC.
Instead, the NGO is the one who infringed the liberty of the society because they have
committed a crime under Section 377 of IPC by way of abetment and crime are usually
against the State.

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PRAYER FOR RELIEF

WHEREFORE

IN THE LIGHT OF ABOVE FACTS STATED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE

PETITIONER

PRAYS BEFORE THE

HONBLE COURT

TO BE

GRACIOUSLY PLEASED TO:

APPLICATION OF ABETMENT OF THE OFFENCE UNDER INDUS PENAL CODE

SECTION 377 OF UNNATURAL OFFENCES AND CRIMINAL CONSPIRACY.
DISCONTINUANCE OF NGO (QUEER RIGHTS ORGANIZATION) AND BANNING
OF THE SOCIAL WEBSITE FOR THE LGBT COMMUNITY
(WWW.QUEERCHAT.COM)
AND

THE COURT

MAY ALSO BE PLEASED TO PASS ANY OTHER ORDER IN THE LIGHT OF JUSTICE,

EQUITY AND GOOD CONSCIENCE.

AND

FOR THIS ACT OF KINDNESS OF YOUR

PETITIONER SHALL AS DUTY BOUND EVER PRAY.

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LORDSHIP,

THE

All of which is respectfully submitted.

________________________________________________________

Counsels on behalf of Petitioner

Date: 3 April, 2014

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