5A- APPELLANT

BEFORE THE HON’BLE HIGH COURT OF DHARMA

CRIMINAL APPEAL AND WRIT PETITION

UNDER SEC 378(4) OF THE CODE OF CRIMINAL PROCEDURE, 1973 AND ARTICLE 226 OF THE

DHARAMSTHAN CONSTITUTION, 1950

IN THE CASE OF

STATE OF DHARMA & ANR. APPELLANT

VS.

HOLY SPIRIT GROUP & ANR RESPONDENTS

HEARD WITH

KARUNYA. APPELLANT

VS.

STATE OF DHARMA & ORS. RESPONDENTS

UPON SUBMISSION TO THE HON’BLE HIGH COURT OF DHARMA

MEMORANDUM ON BEHALF OF THE APPELLANT

TABLE OF CONTENT

INDEX OF AUTHORITIES........................................................................................................... 4

STATEMENT OF JURISDICTION............................................................................................... 6

ISSUE 1:WHETHER THE CRIMINAL APPEAL BY MR. SOORYA AND THE WRIT
PETITION BY MR. KARUNYA MAINTAINABLE IN THE HIGH COURT............................ 7

ISSUE 2: WHETEHER THE RIGHT OF HSG UNDER THE CONSTITUTION TO PROFESS

THEIR RELIGION IS SUBJECT TO REASONABLE RESTRICTIONS ................................... 7

ISSUE 3: WHETHER SUCH INFLAMMATORY STATEMENTS ARE LEADING TO HATE

CRIMES .......................................................................................................................................... 7

STATEMENT OF FACTS ........................................................................................................ VIII

SUMMARY OF ARGUMENTS .................................................................................................. IX

ARGUMENT ADVANCED .......................................................................................................... 1

1.2 MAINTAINABILITY OF THE WRIT PETITION ............................................................. 2

PRAYER ....................................................................................................................................... XI
LIST OF ABBREVIATION

AC Appeal Cases
AIR All India Reporter
Art. Article
Anr. Another
& And
CrPC Code of Criminal Procedure
FIR First Information Report
HC High Court
Hon’ble Honourable
HSG Holy Spirit Group
IPC Indian Penal Code
LGBT Lesbian Gay Bisexual Transgender
Ltd Limited
NCT National Capital Territorry
para Paragraph
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
v versus
WP Writ Petition
INDEX OF AUTHORITIES

CASES

Anandi Mukta Sadguru Shree Mukta vs V.R. Rudani & Ors, 1989 AIR 1607; ............................. 4

Baba Khalil Ahamad vs State ......................................................................................................... 9

Bhagvati Charan Shukla v. Provincial Government AIR (1947) Nagpur 1 ................................... 9

Chiranjit Lal Chowdhuri vs The Union Of India And Others [1950] 1 SCR 869 .......................... 6

Babasaheb.R. Ambedkar, Annihilation of Caste, Navayana Publishing (2014 .............................. 3

Delhi Transport Corporation v. D.T.C. Mazdoor Congress,A.I.R 1991 SC 101 ............................ 5

Francis Corallie Muliin v. Union territory of Delhi, Administrator ,AIR 1981 SC 746 ................ 5

Francis Corallie Muliin v. Union territoryy of Delhi, Administrator ,AIR 1981 SC 746 .............. 5

Gay and Lesbian Equality and Anr. v. Minister of Justice and Ors [1998] ZACC 15 ................... 6

K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1 ........................................... 7

Kathi Raning v. State of Saurastra, 1952 SCR 435 (442) ............................................................... 4

M/S Zee Telefilms Ltd. & Anr vs Union Of India & Ors, Writ Petition (civil) 541 of 2004 ........ 4

MallikarjunKodagali v State of Karnataka ..................................................................................... 1

Maneka Gandhi v. Union of India, AIR 1978 SC 597.................................................................... 5

Navtej singh Johar v Union of India,Writ Petition (Criminal) No. 76 Of 2016 ............................. 5

National Legal Services Authority v. Union of India & Ors, WP (Civil) No 604 of 2013. ........... 4

Naz Foundation v Govt of NCT of Delhi & Ors 160277Delhi Law Times .................................. 3

Ramji Lal Modi vs The State Of U.P, 1957 AIR 620 ..................................................................... 2

Olga Tellis v. Bombay Corporation, AIR 1986 SC 180 ................................................................. 5

Shakti Vahini vs Union Of India,Writ Petition (Civil) No. 231 Of 2010 ....................................... 6

Shreya Singhal v. Union of India, AIR 2015 SC 1523 ................................................................... 2

State of Maharastra v. Chandraban, AIR 1983 SC 803 .................................................................. 5

Swaraj Thackeray vs State of Jharkhand And Ors. (1967) 3 SCR 84.)…………………………...9

Vishaka v. State of Rajasthan, AIR 1997 SC 3011......................................................................... 4

STATUTES

Constitution of India, 1950 ............................................................................................................. 2

Code of Criminal Procedure, 1973 ................................................................................................. 1

Indian Penal Code ........................................................................................................................... 8

OTHER AUTHORITIES

Bryan A. Garner, Black’s Law Dictionary 390 (10th Edition, 2014), Thomson Reuters ............... 2

Report of the Committee on Amendments to Criminal Law (2013) .............................................. 5

Tarunabh Khaitan, Reading Swaraj into Article 15: A New Deal For All Minorities, 2 NUJS Law
Review (2009), atp. 41 ................................................................................................................ 4
STATEMENT OF JURISDICTION

Mr. Soorya and Government of India have approached the High Court under Section 378(4) of
the Criminal Procedure Code, 1973.

Mr. Karunya has filed the writ Petition no.__ in the High Court under Article 226 of the
Constitution of Dharmarastra, 1950
ISSUES RAISED

ISSUE 1:WHETHER THE CRIMINAL APPEAL BY MR. SOORYA AND THE WRIT
PETITION BY MR. KARUNYA MAINTAINABLE IN THE HIGH COURT

ISSUE 2: WHETEHER THE RIGHT OF HSG UNDER THE CONSTITUTION TO

PROFESS THEIR RELIGION IS SUBJECT TO REASONABLE RESTRICTIONS

ISSUE 3: WHETHER SUCH INFLAMMATORY STATEMENTS ARE LEADING TO

HATE CRIMES
STATEMENT OF FACTS

1. The Union of Dharmasthan with Dharma as its capital is a democratic country in South
Asia which has identical legal, political and international treaties ratified as that of
India.Holy Spirit Group (HSG) is an informal youth group at Dharma which conducts
sermons,weekly bible reading, spiritual retreat, distribute pamphlets, notices, update
facebook andtwitter of events which encourages Christian way of life.

2. HSG organized a three-day open art exhibition in Dharma themed Christianity where a
pamphlet containing a phrase against homosexuals was distributed and also a
controversial painting by Antony D’Souza titled “The wrath of God” depicting
homosexual persons being burnt alive was exhibited.

3. Mx. Soorya, a queer activist and an advocate for LGBT community thought the message
in the pamphlet will lead to targeted hate crimes. He complained to the district police and
FIR was registered. The lower court dismissed saying it is only a biblical verse and there
is no intention to incite hatred or harm to the members of the LGBT community. An
appeal is sought against the decision in the High Court of Dharma.

4. Karunya, an LGBT rights NGO, had also filed a writ before the High Court of Dharma
noting that HSG may not be permitted to hold the event in the Corporation Hall. They
also seek to stop any public exhibition of Mr. D’Souza’s controversial painting. HSG
notes that all their actions are fairly within their right to profess the religion they believe
in.

VIII
SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE CRIMINAL APPEAL BY MR. SOORYA AND THE WRIT
PETITION BY MR. KARUNYA MAINTAINABLE IN THE HIGH COURT?

This issue will further be divided into two sub-issues:[1.1] Maintainability of the Criminal
Appeal and [1.2] Maintainability of the Writ Petition. The Criminal Appeal is maintainable in
the High Court under Section 378(4) of the Code of Criminal Procedure. The Writ Petition is
maintainable under Article 226 of the Constitution of Dharmarastra.

ISSUE 2: WHETEHER THE RIGHT OF HSG UNDER THE CONSTITUTION TO

PROFESS THEIR RELIGION IS SUBJECT TO REASONABLE RESTRICTIONS
Article 25(1) of the Indian Constitution which is identical to Dharma Constitution guarantees
the individual’s right to profess their religion subject to public order morality and to the other
provisions of Part III of the constitution, meaning the same is not an absolute but subjected to
certain restriction. In the present case HSG right to profess their religion is restricted because
their actions of distributing pamphlet containing criminalizing note against homosexuals and
displaying Dsouza painting depicting homosexuals burnt alive in hell are affecting public order
morality and other provisions of Part III of the constitution.

ISSUE 3: WHETHER SUCH INFLAMMATORY STATEMENTS ARE LEADING TO

HATE CRIMES
According to setion 153A and section 153B of the Indian penal code the respondent ‘s
statement of “The wrath of the god and it depicts homosexual persons being burnt alive in hell”
this statement is affecting the interest of the petitioner.It is here by submitted that in the present
case right to profess religion of HSG subjected to hatecrime of Indian penal code.

IX
ARGUMENT ADVANCED

ISSUE 1: WHETHER THE CRIMINAL APPEAL BY MR. SOORYA AND THE WRIT
PETITION BY MR. KARUNYA MAINTAINABLE IN THE HIGH COURT?
This issue will further be divided into two sub-issues:[1.1] Maintainability of the Criminal
Appeal and [1.2] Maintainability of the Writ Petition.
1.1MAINTAINABILITY OF THE CRIMINAL APPEAL

The criminal appeal against the order of acquittal ordered by the Trial Court in favour of HSG
is maintainable under Section 378(4) of the Code of Criminal Procedure.1 Section 378(4) of the
Code of Criminal Procedure states that if an order of acquittal is passed in any case instituted
upon complaint and the High Court, on an application made to it by the complainant in this
behalf, grants special leave to appeal from the order of acquittal, the complainant may present
such an appeal to the High Court.Therefore, the High Court has the power to hear any matter
where a lower court has acquitted the accused. The appellant will be required to seek a special
leave upon the grant of which, the appeal against the order of acquittal can be filed. 2 Moreover,
Mr. Soorya is a victim as well as the first complainant in this case.
In this case, the criminal appeal filed in the high court by Mr. Soorya is against the order of
acquittal delivered by a subordinate court. Mr. Soorya will be required to seek a special leave
and after the grant of such a leave, he may proceed with the appeal against the acquittal of the
Holy Spirit Group.Section 378(4) of the Code of Criminal Procedure clearly mentions the term
complaint, which differs from the facts of the current case as this related to an order of acquittal
arising out of a First Information Report (FIR). However, the Supreme Court has stated that
This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all
necessary to consider the effect of a victim being the complainant as far as the proviso to
Section 372 of the Code of Criminal Procedure is concerned.3 The court also stated in the same
case that it is not necessary to acquire a special leave from the High Court to file such an
appeal.4 Thus, the fact that this appeal is against an order of acquittal arising out of an FIR and
not a complaint doesn’t take away the power of the High Court to hear this matter under Section
378(4).

1
Code of Criminal Procedure, 1973, Sec 378(4).
2
Id.
3
MallikarjunKodagali v State of Karnataka, Appeal Nos. 1281-82 of 2018
4
Id
1
1.2 MAINTAINABILITY OF THE WRIT PETITION.
The writ petition filed in the High Court by Mr. Karunya is maintainable under Article 226 of
the Dharma Constitution.5Article 226 of the Constitution of Dharmarastra states that every High
Court shall have powers, throughout the territories in relation to which it exercise jurisdiction,
to issue to any person or authority, including in appropriate cases, any Government, within
those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of
any of the rights conferred by Part III and for any other purpose.67 Part III of the Constitution
deals with Fundamental rights. Article 226 gives High Courts the power to hear writ petitions
against the state, bodies fully or partially owned by the state and also private bodies. This
petition is against Holy Spirit Group (Private body) and the State Government. Article 226 of
the Constitution also allows the court to issue mandamus. Mandamus is a judicial writ issued as
a command to an inferior court or ordering a person to perform public or statutory
duty.8Therefore, the writ petition filed by Mr. Karunya is maintainable in the High Court.

Furthermore, the High Court has the power to hear two petitions because the issues are arising
from the same set of facts. Section 482 of the Code of Criminal Procedure provides the High
Court with an inherent power to adjudicate and decide two matters simultaneously when one is
a civil matter and the other is a criminal matter.

ISSUE 2: WHETEHER THE RIGHT OF HSG UNDER THE CONSTITUTION TO

PROFESS THEIR RELIGION IS SUBJECT TO REASONABLE RESTRICTIONS
Article 25(1) of the Indian Constitution which is identical to Dharma Constitution guarantees
the individual’s right to profess their religion subject to public order morality and to the other
provisions of Part III of the constitution, meaning the same is not an absolute but subjected to
certain restriction.9 In the present case HSG right to profess their religion is restricted because
their actions of distributing pamphlet containing criminalizing note against homosexuals and
displaying Dsouza painting depicting homosexuals burnt alive in hell are affecting [2.1] public
order [2.2] morality [2.3]and other provisions of Part III of the constitution.

5
The Constitution of India, 1950, Art. 226.
6
Part III of the Indian Constitution – This Part (Article 12-35) relates to Fundamental Rights.
7
Zee Telefilms & Anr v Union of India & Ors., Writ Petition (Civil) 541 of 2004
8
Bryan A. Garner, Black’s Law Dictionary 390 (10th Edition, 2014), Thomson Reuters
9
Supra note 5, Art 25.
2
2.1 PUBLIC ORDER

Public order is a term of art, and refers to the maintenance of public peace and tranquility that is
one level beyond simply maintaining “law and order”, and preventing ordinary law-
breaking.10Thus in order to check public disorder the proximity has to be established between
speech and public disorder caused.11If the enjoyment of a right by someone poses threat to
peace and order to state. Then the state is empowered by the constitution to put restriction on
enjoyment of such rights to the extent it is violative of peace and order.

In the present case there is every chances of having public disorder by LGBT community with
the action of HSG and painting of Dsouza. Therefore petitioner humbly submits to this court to
grant injunction against Dsouza and HSG for such note and painting respectively which can lead
to disorder in future and also writ of mandamus against state to stop facilitating such events.

2.2MORALITY

The idea of morality can be understood in two ways- Public morality and Constitutional
morality. Public morality determines the conduct of society by popular perceptions existent in
society.12Constitutional morality on the other hand determines the mental attitude towards
individuals and issues by the text and spirit of the Constitution. Constitutional morality reflects
that the ideal of justice is an overriding factor in the struggle for existence over any other notion
of social acceptance.13 In the case of Naz Foundation v Govt of NCT of Delhi & Ors.14it had
been held:

“Popular morality or public disapproval of certain acts is not a valid justification for restriction
of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional
morality derived from constitutional values, is based on shifting and subjecting notions of right
and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it
must be “constitutional” morality15Thus giving rise to the concept of transformative
constitutionalism which says constitution is a living organic document and has to be updated
with contemporary era and changing social norms and thus holding the supremacy of
constitution in compliance with constitutional morality.

10
Ramji Lal Modi vs The State Of U.P, 1957 AIR 620
11
Shreya Singhal v. Union of India, AIR 2015 SC 1523.
12
Babasaheb.R. Ambedkar, Annihilation of Caste, Navayana Publishing (2014);
13
Navtej singh Johar v Union of India,Writ Petition (Criminal) No. 76 Of 2016
14
Naz Foundation v Govt of NCT of Delhi & Ors277Delhi Law Times 160
15
id
3
In the present case with the advent of Navtez case16, constitutional morality is now shifted to
rights of LGBT communities. Therefore the perception of HSG and Dsouza is only limited to
public morality which can be easily over riden taking into consideration constitutional morality
and transformative constitutionalism.

Taking into consideration the above mentioned provisions it is hereby submitted that the right to
profess religion of HSG is subjected to public order and morality and in the present case their
actions are affecting public order, morality and other provisions of part III of the Indian
Constitution identical to Dharma Constitution. Therefore the Respondent cannot enforce their
right under Article 25 of the Constitution.

2.3VIOLATION TO OTHER PROVISION OF PART III OF THE CONSTITUTION

Part III of the Indian Constitution is enforceable against State. However the same can also be
enforced against non state actors if performing public duty by way of Article 226 which is
wider than Article 32 of Indian Constitution.17 The mentioned argument is also been supported
by the concept of horizontal rights followed in the case of Vishaka v. State of Rajasthan18
wherein violation of Article 14, 15 and Article 21 of the Indian Constitution is enforced against
private actors.

Therefore, It is hereby humbly submitted that action of HSG is morally, legally,

constitutionally, ethically and emotionally wrong because it violate the fundamental right
under [A] Article 14, Article 15(1) of Indian Constitution and [B] Article 21 of Indian
Constitution.

[A] Violation under article 14, article 15(1) of Indian constitution

Article 15(1) specifically bars the state from discriminating against any citizen of India on
grounds only of religion, race, caste, sex, place of birth, or any of them19. ‘Discrimination
shortly means difference in treatment. The dictionary meaning of ‘discriminating against’ is to
“make an adverse distinction with regard to” “distinguish unfavourably from others”.20

16
Supra note 13
17
Anandi Mukta Sadguru Shree Mukta vs V.R. Rudani & Ors, 1989 AIR 1607; M/S Zee Telefilms Ltd. & Anr vs
Union Of India & Ors, Writ Petition (civil) 541 of 2004
18
Vishaka v. State of Rajasthan, AIR 1997 SC 3011
19
Supra note, Art. 15(1).
20
Kathi Raning v. State of Saurastra, 1952 SCR 435 (442).
4
Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an
individual, but also includes their gender identity and character.21 Paragraph 66 of the judgment
defines gender identity as “Gender identity refers to each persons deeply felt internal and
individual experience of gender, which may or may not correspond with the sex assigned at
birth, including the personal sense of the body which may involve a freely chosen, modification
of bodily appearance or functions by medical, surgical or other means and other expressions of
gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an
individuals self-identification as a man, woman, transgender or other identified category.”22
Thus discrimination on the basis of our immutable status tends to deny us an autonomous life
resulting in limiting the scope of exercising one’s personal choice.23The same has also been
recommended by Justice Verma Committee24. Also the discrimination based on sex plus
something would come within the purview of discrimination under Article 15.25Thus The
discrimination on the ground of sex under Articles 15 and 16, therefore, includes discrimination
on the ground of gender identity and undermines the personal autonomy. Also In the similar
Justice, Indu Malhotra opined that Artificial dichotomy is created between homosexual and
heterosexual irrespective of consensus been given by adults, which is a violation of Article 14.26
In the present case with such piercing note on the pamphlet, HSG is imposing majoritarian rule
over sexual minority and such imposition and discrimination is solely on the basis of sexual
orientation of LGBT community which is immutable in nature. The painting of Dsouza
depicting homosexuals burnt to death is restricting individual right of self realization and
undermining the personal autonomy of LGBT community. Also Section 377 of the IPC which
was criminalizing unnatural offence is partially struck down in relation to LGBT community in
the Navtez case. Also, distributing the pamphlet with a note and painting“The wrath of God”
depicting homosexual persons being burnt alive in Hell is creating artificial dichotomy in the
mind of people between homosexual and heterosexual irrespective of consent been given by
adults in both the cases which is a clear violation of Article 14 of the Constitution.
Therefore discrimination made by HSG and painting of Dsouza on the basis of sexual
orientation which comes within the purview of sex and creating artificial dichotomy between

21
National Legal Services Authority v. Union of India & Ors.,WP (Civil) No 604 of 2013.
22
Supra note 21
23
Tarunabh Khaitan, Reading Swaraj into Article 15: A New Deal For All Minorities, 2 NUJS Law Review (2009),
at p. 41
24
Report of the Committee on Amendments to Criminal Law (2013)
25
Supra note 13
26
id
5
homosexuals and heterosexuals and also the State for facilitating such events are sheer violation
of Article 14 and Article 15(1) of the LGBT community under Dharma Constitution.
.
[B] VIOLATION OF ARTICLE 21
Article 21 of the Indian Constitution says that “No person shall be deprived of his life or
personal liberty except according to the procedure established by law”.
Definition of Life and liberty
Right to life, enshrined in Art. 21 means something more than survival or animal existence27.It
would include the right to live with human dignity28. Dignity would include all those aspects of
life which go to make a man’s life meaningful, complete and worth living29.That which alone
can make it possible to live must be declared to be an integral component in right to live30.
the right to personal liberty does not only stand the test of Article 21 but it must also stand the
test of Article 19.31
Article 21 of the Indian Constitution has very wide amplitude therefore for the purpose of
present problem, its scope is been limited to three major pillar
1. Right to live with dignity
Each person’s self-defined sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-determination, dignity and
freedom.32. Homosexuality and bisexuality are natural variants of human sexuality having
no control over their sexual orientation. LGBT persons, like other heterosexual persons are
also entitled to the right to lead a dignified existence without fear of persecution.33
In the present case Respondent is not allowing LGBT community to live a dignified life
because the painting and pamphlet of the respondent are depicted in a way as if the
community is committing any offence punishable with death penalty. Thus the pamphlet
and painting of HSG is bringing down the dignity of the LGBT in the eyes of people who
would be attending the exhibition. Therefore HSG is violating Right to dignity enshrined
under Article 21 of the Constitution.

27
State of Maharastra v. Chandraban, AIR 1983 SC 803 (Para 1, 20): (1983) 3SCC 387.
28
Delhi Transport Corporation v. D.T.C. Mazdoor Congress,A.I.R 1991 SC 101 (Para 199,244,251,262,267) CB:(
1991) Supp. 1 SCC600; Francis Corallie Muliin v. Union territoryy of Delhi, Administrator ,AIR 1981 SC
746(Para 3):1981 1 SCC, Maneka Gandhi v. Union of India, AIR 1978 SC 597; (1978) 1 SCC 248.
29
Supra note 13.
30
Olga Tellis v. Bombay Corporation, AIR 1986 SC 180 (Para 33-34): (1985) 3 SCC 545.
31
Chiranjit Lal Chowdhuri vs The Union Of India And Others[1950] 1 SCR 869
32
Supra note 21
33
Supra note 13
6
 2. Right to freedom of choice
The right to life and liberty would encompass intimate decisions relating to their personal
life, including the choice of their partners. In the South African case, Gay and Lesbian
Equality and Anr. v. Minister of Justice and Ors.34 It has been held “The expression of
sexuality requires a partner, real or imagined. It is not for the state to choose or arrange the
choice of partner, but for the partners to choose themselves.” Similarly in India in the case
of Shakti Vahini vs Union Of India35 the person has right to choose his/her partner. It is the
manifestation of their choice under Article 19 and Article 21 of the Constitution.
In the present case the Respondent are criminalizing LGBT community for the reason they
are sleeping with the same sex as mentioned in the note of the pamphlet. Thus they are
violating the fundamental right of LGBT community under Article 19 and Article 21 of the
constitution to choose partner of their choice.
3. Right to privacy
The right to privacy has now been recognised to be an intrinsic part of the right to life and
personal liberty under Article 21.36Sexual orientation of a person is an essential attribute of
privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15,
and 21.37The right to privacy is broad-based and pervasive right encompasses decisional
autonomy, to cover intimate/personal decisions and preserves the sanctity of the private
sphere of an individual.38
In the present case HSG and painting of Dsouza has violated right to privacy of the LGBT
community by criminalizing the act of man sleeping with another man which is the intrinsic
part of their sexual orientation. Also it violates the private decision of LGBT community to
choose partner of their choice. According to Section 375 of 2013 Amendment Act, the
penetrative Acts including oral and anal sex is not construed as Rape if done with the
consent of partners but the same is criminalized by HSG by way of pamphlet and painting
even though the element of consent is present in case of homosexuals. Thus the act of HSG
is not letting homosexuals to have choice in their private matter. Thus HSG is make it
difficult for homosexuals to live with dignity and liberty and also the fair treatment is not
provided to them in relation to heterosexuals which is also violation of Article 14.

34
Gay and Lesbian Equality and Anr. v. Minister of Justice and Ors[1998] ZACC 15
35
Shakti Vahini vs Union Of IndiaWrit Petition (Civil) No. 231 Of 2010
36
K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1
37
id
38
id
7
ISSUE 3: WHETHER SUCH INFLAMMATORY STATEMENTS ARE LEADING TO
HATE CRIMES
According to section 153A and section 153B of the Indian penal code the respondent’s
statement leading to hate crime.
3.1 THERE WAS AN INTENTION TO INSULT THE FEELINGS OF NATIONAL INTEGRITY OF THE
PETITIONER UNDER S. 153A AND 153B
A hate crime is any crime where the victim’s disability, race, religion, sexual orientation or
gender identity is the motivation behind the crime. As LGBT people, they have the right to live
their lives without fear of being harmed in any way due to our sexual orientation or gender
identity. So do our family and friends. Unfortunately, many LGBT people still experience hate
crime.
Section 153A of Indian penal code states, by words, either spoken or written, or by signs or by
visible representations or otherwise, promotes or attempts to promote, on grounds of religion,
race, place of birth, residence, language, caste or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language
or regional groups or castes or communities.
Section 153A is latter addition to the code it was brought on the statute book in 1898 by the
Indian penal code(amendment) Act of 1898 with a view to prevent breaches of public
tranquility and to prevent various classes coming into conflict by mutual abuse and
recrimination.(quarrelling blaming one other).In pursuance of the recommendations of the
national integration council in 1969 section 153A and section 505 IPC(statements conducting to
public mischief) were extensively amended so as to widen the scope and extent of the impugned
sections to prevent and remove the communal tensions.
Basically a fair and rational criticism of any group of people or any religion or race or caste
then that is not attract the section 153A but when the criticism is not fair then that should
attract the section 153A .
Here the Holy spirit group is conduct the art exhibition to spread their religion this is not
amount to crime but when they issued the pamphlets which states “if a man lies with a male as
with a women both of them have committed abomination they shall surely be put to death their
blood is upon them. And the exhibition is also display for the first time, a controversial painting
by antony D’souza a famous artist and the painting titled “The wrath of the god a and it depicts
homosexual persons being burnt alive in hell

8
This activity of Holy sprit group commits a offence under section 153A. Section 153A clearly
states, any one doing any enmity actions against the race caste, community then that is amount
to illegal. The holy spirit group targeting the LGBT community and the HSG statement
insulting the LGBT community through using their religion.

It is humbly submitted before this court that respondent’s intention to insult the feelings of
national integrity was understood In the case of Swaraj Thackeray vs State of Jharkhand And
Ors.39 Committing an act prejudicial to maintenance of harmony between different religious
communities is likely to disturb the public tranquillity. The question arose as to whether from
the allegations under S.153-A40 and 153-B41 is made out or not. From bare perusal of the
allegation smade in para-2 3 of the fact sheet as well as the statement in the pamphlet, “if a man
lies with a male as with a woman, both of them have committed an abomination; they shall
surely be put to death; their blood is upon them”and the painting of D’Souza there is no doubt
about it that prima-facie case for commission of the offence as alleged do exists. Statements
made by the HSG members was not only unconstitutional, derogatory, defamatory and unlawful
but was made with an intent to insult the entire LGBT community made with mala fide,
intentions adultery or motive to disseminate disharmony amongst the different groups.
Prima facie the FIR discloses the commission of the offence under S.153A42 of IPC against the
respondents and had disturbed the social tranquillity of the State everything which is an offence
or which is prohibited by law or which furnishes ground for a civil action is as defined under
S.43 of IPC43.The matter complained of within the ambit of S.153A must be read as a whole.
One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can
one take a sentence here and a sentence there and connect them by a meticulous process of
inferential reasoning.
In Bhagvati Charan Shukla v. Provincial Government44, the Court observed that the effect of
the words must be judged from the standards of reasonable, strong-minded, firm and
courageous men, and not those of weak and vacillating minds, nor of those who scent danger in
every hostile point of view. It is the standard of ordinary reasonable man or as they say in
English Law “the man on the top of a Clapham omnibus” In the standard of an ordinary

39
Swaraj Thackeray vs State of Jharkhand And Ors. (1967) 3 SCR 84.)
40
The Indian Penal Code,1860, Sec 153A.
41
Id, 153B
42
Supra note 40.
43
Supra note 40, Sec 43.
44
Vivian Bose, J. in Bhagvati Charan Shukla v. Provincial Government AIR (1947) Nagpur 1
9
reasonable man, the inflammatory message in the pamphlet and the painting clearly incites a
feeling of hatred or harm in the LGBT community as it says that people involving in
homosexuality should be put to death.
In Baba Khalil Ahamad45 case it was held that the writing must be deliberate and malicious
intention of outraging the religious feelings of a class of citizens of India. In order to establish
malice as contemplated by this S.295A it is necessary to prove ill-will or enmity against specific
person. If an injurious act was done voluntarily without a lawful and just excuse, malice can be
presumed. In the case, the acts done by HSG distributing pamphlets containing such
inflammatory statement and painting exhibited leads to enmity against LGBT community. It
does not only prove ill-will or hatred against the community but also that public tranquillity is
disturbed. Moreover, acts by the HSG distributing pamphlets containing such inflammatory
statement and painting exhibited amounts to injurious act, was done voluntarily. Hence, it
amounts to targeted hate crime.
Every religion has the basic moral values, norms and ethics even though they follow the rules of
their religion they should not restrict the individuals freedom to live their life. Right to life is
free to all citizen. At the same time section 37746 of the IPC strike down which means LGBT
community is legally valid. So HSG violate section 153A and Section 153B

45
Baba Khalil Ahamad vs State on 20 April, AIR (1960) All 715, 1960 CriLJ 1528
46
Supra note 40, Sec377.
10
PRAYER

PRAYER FOR RELIEF FOR STATE OF DHARMA

Wherefore in the lights of the facts stated, issues raised, arguments advanced and
authorities cited it is most humbly and respectfully prayed before this Hon’ble High Court of
Dharma that it may be pleased to:
1. Allow the criminal appeal for the State of Dharma
2. Declare that the inflammatory messages has the intention to incite hatred or harm to the
LGBT community

PRAYER FOR RELIEF FOR KARUNYA

Wherefore in the lights of the facts stated, issues raised, arguments advanced and
authorities cited it is most humbly and respectfully prayed before this Hon’ble High Court of
Dharma that it may be pleased to:

3. Allow the writ petition

4. Declare to stop any public exhibition of Mr.D’Souza’s controversial painting
5. Declare that the actions of HSG are not within their rights to profess the religion they
believe in
6. Pass a Writ of Mandamus directing State to prevent facilitating any such future event
happening in their corporation hall against LGBT

The court may also be pleased to pass any other order, which this Hon’ble Court may deem fit
in light of justice, equity and good conscience. All of which is respectfully submitted on behalf
of the Appellants.

Sd/-
..............................
(Counsel for the “Appellants”)

XI
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