Wherefore, in light of the issues raised, arguments advanced, and authorities cited, may this
Hon’ble Court be pleased to:
1. UPHOLD that the present special leave petition is not maintainable.
2. UPHOLD the order of the High Court declaring Section 377 as constitutional.
3. UPHOLD the order of the High Court declaring that the matrimonial laws of the country
are constitutional and cannot be subject to judicial review.
AND/OR
Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in the interests of
justice, equity and good conscience.
For this act of Kindness, the Respondent, as in duty bound, shall humbly pray.
Place:
Date:
Sd/-
(Counsel for the Respondent)
Wherefore, in light of the issues raised, arguments advanced, and authorities cited, may this
Hon’ble Court be pleased to:
1. UPHOLD that the present special leave petition is maintainable.
2. UPHOLD the order of the High Court declaring Section 377 as unconstitutional.
3. UPHOLD the order of the High Court declaring that the matrimonial laws of the country
are unconstitutional as they discriminate against the homosexuals.
AND/OR
Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in the interests of
justice, equity and good conscience.
For this act of Kindness, the Respondent, as in duty bound, shall humbly pray.
Place:
Date:
Sd/-
(Counsel for the Petitioner)
Summary of arguments (petitioner)
That the present SLP is maintainable
It is humbly submitted to this Hon’ble Court that under Article 136 of the Constitution of India,
any person, aggrieved by any order or decision of any court in India can approach the Supreme
Court through a Petition for Special Leave. The Petitioner has the locus standi to approach the
Hon’ble Supreme Court as civil appeals not covered by Article 133 can be brought to the apex
court under Article 136. Furthermore, the jurisdiction of Supreme Court can always be invoked
when a question of law of general public importance arises. Also, in case at hand the ‘substantial’
questions of law are involved. The jurisdiction conferred under Art. 136 on the SC is a corrective
one and not a restrictive one. The questions of implementation of Uniform Civil Code,
criminalization of homosexuality and regulation of surrogacy are substantial question of law and
of general public importance. Hence Article 136 can be invoked for the same.
Section 377 is unconstitutional
It is contended that Section 377 is not constitutionally valid it does violate any Fundamental
Rights of the citizens. The classification of sexual acts based on whether they are in consonance
with the ordinary course of nature or not is not founded on an intelligible differentia and there is
no rational nexus between such classification and objective sought by the legislation. Further,
Section 377 is arbitrary it does not provide equal status to heterosexual. The state has no
compelling and legitimate interest as even in case of heterosexual state promote use of non
contraceptives as part of family planning and public decency and morality cannot surpass the
constitutional morality as mentioned in constitution of India. Secondly, it is contended that
Section 377 does violate Article 15 of the constitution which prohibits discrimination on the
grounds of sex, race etc. Lastly, Section 377 does violate Article 21 as it qualifies the test of
substantive due process and is in the interest of public health. It is also contended that Right to
Privacy u/a 21 is also violated rendering Section 377 unconstitutional.
Summary of arguments
SLP is not maintainble
Article 136 empowers the Supreme Court to grant in discretion Special leave to Appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India. It vests in the Supreme Court a discretionary power to be
exercised for satisfying the demands of justice under exceptional circumstances. Such power is to
be exercised with caution and in accordance with law and set legal principles. In the
instantaneous matter SLP is not maintainable as Special Leave cannot be granted when
substantial justice has been done and no exceptional or special circumstances exist for case to be
maintainable. The practice of non-interference in the decisions of lower courts is followed by the
Supreme Court when it is of the view that all relevant factors have been taken into consideration
as in the instantaneous matter.
That section 377 is constitutional in the present case.
It is contended that Section 377 is constitutionally valid it does not violate any Fundamental
Rights of the citizens. The classification of sexual acts based on whether they are in consonance
with the ordinary course of nature or not is founded on an intelligible differentia and there is
rational nexus between such classification and objective sought by the legislation. Further,
Section 377 is not arbitrary as mere possibility of abuse of power does not render legislation
arbitrary. The state has compelling and legitimate interest in the form of maintaining public
health, decency and morality by enforcing the provisions of Section 377. Secondly, it is
contended that Section 377 does not violate Article 15 of the constitution which prohibits
discrimination on the grounds of sex, race etc. Lastly, Section 377 does not violate Article 21 as it
qualifies the test of substantive due process and is in the interest of public health. It is also
contended that Right to Privacy u/a 21 is not absolute and it may be curtailed by following due
process, rendering Section 377 constitutional.
