Law Minister favours retention of death penalty

The Minister for Law and Justice HR Bharadwaj has said he favours the retention of the death penalty. This is in contrast with the views expressed by the President and the Chief Justice of India.

Porn on Cable TV - the nanny state

The government is setting up district level committees to monitor the broadcast of pornographic programmes on cable television.

NHRC criticises anti-trafficking law

The Chairperson of the National Human Rights Commission, Justice Anand, has criticised the Immoral Trafficking of Persons Act, saying that the Act is mostly used against the sex-workers and not against those who organise the business of trafficking.

NCW recommends overhaul of sexual assault laws

The National Commission for Women has recommended the expansion of the definition of sexual assault to cover cases not currently covered by rape law, and has also demanded the repeal of s. 377. However, another news story says that there was some controversy and confusion over the particular recommendation dealing with the repeal of s. 377.

SC upholds ban on cow slaughter

The Supreme Court upheld a Gujarat government ban on cow slaughter, rebuffing arguments that it violates the fundamental right to trade. This is not surprising, given that there is an express directive principle regarding the same and the SC jurisprudence that directive principles and fundamental rights have to be read harmoniously.

Law to guide discretion on mercy petitions

The President has requested the Parliament to frame a law to provide the guidelines for dealing with mercy petitions from death row convicts. The debate continues, with another former judge, Rajinder Sachar speaking out against it.

Child marriage

A Delhi High Court judgment seems to justify child marriage.

Sikh riots cases against Ministers opened

The government has delivered on its promise by directing the CBI to open the anti-Sikh riots cases against the former Ministers.

Review of rape laws

A high level meeting of Home Ministers is reviewing the rape laws. This may revive the debates on gender-neutrality and the 172nd Law Commission Report.

Another acquittal in Gujarat

Another case involving the Gujarat riots ended in acquittal of all the 108 accused because of lack of evidence.

Police and riots

Kuldeep Nair talks about the role of the police during riots.

Caste in the army

The status and representation of dalits in the army has become an issue, with demands for greater recruitment of scheduled castes.

Rape victim rehabilitation policy

The National Commission for Women has finalised a policy for rehabilitation, support and counselling for the rape victim.

Mental Health Act

The Supreme Court has issued notice to the government in a petition seeking the implementation of the Mental Health Act.

Activist President against Death Penalty

A very interesting Indian Express story details the activism of a reluctant President Kalam who wants to pardon all death row prisoners. The move has not only raised the issue of death penalty itself but also of the scope of presidential powers.

Squatters' eviction

The Delhi High Court has ordered the eviction of squatters from public land. The issue of slum-dwellers in urban land cannot be decided in a strict legality/illegality binary and a more holistic policy needs to be evolved.

Punjab disappearances

The NHRC hearings on the Punjab disappearances are underway, holding some hope for the victims.

Police Reforms

Another piece on police reforms focussing on training and the need to insulate hte police from the control of politicians.

EC notice on 'Muslim CM'

The Election Commission has issued a notice to Ram Vilas Paswan for violation of the Code of Conduct by asking for votes in the name of religion. The reference was to his promise of installing a Muslim Chief Minister in Bihar. It was high time the EC got cracking over blatant (mis)use of religion in elections.

HIV and s. 377

Reacting to the Planning Commission's recommendations, Gautam Bhan underscores the point that AIDS prevention should not be the sole reason why s. 377 should be repealed.

National Text Books Council

The government is contemplating setting up a National Text Books Council to be a watchdog institution, primarily aimed at checking communal propaganda through textbooks.

Text of the government reply in the s. 377 case

This is the text of the reply filed by the government in opposition to the petition challenging the constitutionality of s. 377 Indian Penal Code, which criminalises homosexual behaviour.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 7217-7218 OF 2005

IN THE MATTER OF :

NAZ FOUNDATIN …………PETITIONER

VERSUS

GOVT. OF N.C.T. OF DELHI ………RESPONDENTS COUNTER AFFIDAVIT ON BEHALF OF RESPONDENT NO.5

I, Y.K. Baweja, Deputy Secretary (Judicial), Ministry of Home Affairs, Government of India, do hereby solemnly affirm and state as under:

1. That I am working as Deputy Secretary (Judicial), Ministry of Home Affairs, Government of India, and am conversant with the facts and circumstances of the case. I have read a copy of the Special Leave Petition and have understood its contents.

PRELIMINARY SUBMISSIONS

1. That the Writ Petition filed before the High Court, styled as Public Interest Litigation, was pre-mature and not maintainable. By way of the said Writ Petition the petitioner sought for a declaration that Section, 377 IPC to the extent it is applicable and penalizes sexual act in private

between consenting adults, is violative of Articles 14, 15, 19(i)(a)-(d) and 21 of the Constitution of India. It is submitted that ordinarily a writ petition filed by way of Public Interest Litigation questioning the constitutionality or validity of the statute should not be entertained. (See Guruvayoor Devaswom Managing Committee Vs. C.K. Rajan (2003) 7 SCC 546 at 571).

2. That the High Court rightly dismissed the Writ Petition as being academic. It is submitted that the Petitioner sought a general pronouncement by the Court on the vires of Section 377, IPC without reference to any specific grievances. The Petitioner claims that on account of the said section remaining in the statute book, it hampers their work in the filed of HIV/AIDS intervention and prevention. However, no specific instance or instances have been cited to demonstrate as to how the existence of the said provision in any way hampers their work.

3. That the question whether homosexuality should be an offence or not, lies in the domain of the Legislature. It is for the Legislature to decide, taking into account various social factors, as to

What is regarded as a prohibited act and how the same is to be dealt with. It is essential a matter of legislative policy and there are no judicially manageable standards by which to assess as to whether a particular act should be made an offence or not. Public opinion and the current societal context in India does not favour the deletion of the said offence from the status book. In fact, homosexuality/sodomy is still an offence in large number of countries all over the world. A list of such countries where homosexuality/sodomy is illegal is annexed herewith as Annexure R-V/1.

PARA WISE REPLY

1. In reply to contents of para 1 of the petition, it is submitted

that so far as filing of the writ petition in the High Court and its dismissal and filing of review and its dismissal are concerned, it is a matter of record and calls for no reply.

2.(i) In reply to contents of para 2 (i) of the petition it is submitted that no substantial question of law of public importance arises in the present petition. In reply to para 2(i) it is submitted that the Petitioner organization cannot be said to have any bonafide or special interest vis-à-vis the issue pertaining to the validity of Section 377 of the Indian

Penal Code. It is submitted that the High Court of Delhi rightly observed that no cause of action had arisen for filing the writ petition. It was rightly concluded that the Petitioner has no locus standi. It is submitted that it is well settled that in criminal matters a third party, i.e. a person other than the accused, cannot invoke the writ jurisdiction of the Court to enforce the fundamental rights of the accused/offenders. (See Simranjeet Singh Mann Vs. Union of India (1992) 4 SCC 653).

2(ii) In reply to contents of para 2 (ii) of the petition it is reiterated that the question of constitutionality of Section 377, IPC raises the issue as to whether a particular act should be made an offence or not. It is submitted that it is in the domain of the Legislature to determine as to what shall be an offence and what shall not, keeping in mind the prevailing societal interests and concerns.

3. Contents of para 3 of the petition are matter of record and need no reply.

4. Contents of para 4 of the petition are matter of record and need no reply.

5A. In reply to ground ‘A’ it is submitted that the Petitioner organization cannot be said to be having any bonafide or special interest vis-à-vis the issue pertaining to the validity of Section 377 of the Indian Penal Code. It is submitted that the High Court of Delhi rightly observed that no cause of action had arisen for

filing the writ petition. It was rightly concluded that the Petitioner has no locus standi. It is submitted that it is well

settled that in criminal matters a third party, that is other than

the Accused cannot invoke the writ jurisdiction of the Court

to enforce the fundamental rights of the Accused/offenders.

(See Simranjeet Singh Mann Vs. UOI (1992) 4 SCC 653).

5B. In reply to ground ‘B’ it is submitted that the Petitioner seeks a general declaration regarding the validity of section 377, IPC. Further, the Petitioner claims that the existence of the said Section hampers their activities in the field of HIV/AIDS intervention and prevention. However, apart from a general apprehension no specific instance or reasons have been given as to how the said provision is a hindrance in the performance of their activities. In the circumstances, the Writ Petition before the High Court raised purely academic questions which did not require determination by the Court. It is further submitted that the current societal context and opinion in India does not warrant any change to Section 377, IPC. Even if it is assumed that the rights of sexual minorities emanates from a perceived right to privacy, is submitted that the right to privacy cannot be extended to defeat public morality, which must prevail over the exercise of any private right. The question of homosexuality, it is submitted, is not a mere question of personal preferences but may involve behavioral sanction of legislative authority of the State, as it tends to affect the social environment. The judgments

cited in the para under reply, it is submitted, have no application to the special facts of the present case.

5C. In reply to para ‘C’ it is submitted that all fundamental rights are subject to reasonable restrictions. Section 377 of the Indian Penal Code creates an offence as the legislatures perceives such an act as being immoral by society at large, especially keeping in mind the opinions and concerns in Indian society. No ground has been made out for challenging the validity of Section 377, IPC. It is further submitted that the parameters within which public interest litigation can be resorted to, have been clearly defined by this Hon’le Court. The issue sought to be raised in this paragraph at the instance of the present Petitioner is a matter which does not fall within the parameters, which have been defined by this Hon’ble Court. That so far as the issue vis-à-vis challenge to the constitutionality of Section 377, IPC is concerned, it is a matter of legislative policy as to whether a particular act should be treated as an offence and the same is not open to judicial review. The Law Commission it its 172^nd Report on “Review of Rape Laws”, has recommended changes for widening up the scope of the offences in Section 375 and 376 of the Indian Penal Code, 1860 and to make the offences gender neutral. It has also recommended insertion of a new Section 376E to deal with unlawful sexual contact with young persons below the age of sixteen years. In view of the changes recommended by it in

Section 375 and 376 of the Indian Penal Code, the Law Commission of India has recommended deletion of Section 377, IPC. The full text of the relevant recommendations of the Law Commissions of the Law Commission are annexed herewith as Annexure R-V/II. The concerned recommendations of the Law Commission are being examined by the Government.

6. In view of the aforesaid submissions it is respectfully submitted that the Special Leave Petition is devoid of merits and is liable to be dismissed.

7. That no new facts, except those stated in para 3 of the Preliminary Submissions, have been stated which were not stated before the High Court. For additional facts and documents a separate application is filed herewith.

VERIFICATION

Verified at New Delhi on this 26^th day of September, 2005. I, above named deponent, do hereby verify that the contents of this Counter Affidavit are true and correct to the record of the case, no part of it is false and nothing material has been concealed therefrom.

DEPONENT

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I. A. NO.

IN

SPECIAL LEAVE PETITION (CIVIL) NO. 7217-7218 OF 2005

IN THE MATTER OF:

AN APPLICATION FOR PERMISSION TO PLACE ON RECORD ADDITIONAL FACTS AND DOCUMENTS.

NAZ FOUNDATION …PETITIONER

VERSUS

GOVT. OF N.C.T. DELHI …RESPONDENTS

TO

HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA.

MOST RESPECTFULLY SHOWETH:

1. That Respondent No. 5 has this day filed the accompanying counter affidavit in the above mentioned Special Leave Petition.

2. That in para 3 of the preliminary submissions the answering Respondent has stated certain facts relating to the illegality of homosexuality in various countries in the world. A list of such countries has also been annexed as Annexure R-V/1. The answering Respondent has also placed on record the recommendation of the Law Commission as AnnexureR-V/2. Before the High Court only a gist of the Recommendations of the Law Commission contained in its 172^nd Report was placed on record. It is submitted that said facts and documents have a bearing on the issues raised in the present petition. No prejudice would be caused to the Petitioners if the said facts and documents are placed on the record of this Hon’ble Court.

3. It is therefore submitted that the said facts and documents are relevant for deciding the issues raised in the present Special Leave Petition. It would thereforebe in the interest of justice that the answering Respondent is permitted to place on record the said additional facts and the annexures in support thereof along with its reply.

4. That no facts which were not pleaded in the Courts below have been pleaded in the present counter affidavit.

DEPONENT

PRAYER

In the facts and circumstances explained herein above and in the interest of justice it is therefore prayed that this Hon’ble Court may be pleased to:

(a) Permit Respondent No. 5 to place on record the additional facts stated in para 3 of the Preliminary Submission and para 5C of the Counter affidavit;

(b) Permit Respondent No. 5 to file Annexures R-V/1 and

R-V/2 along with its counter affidavit; and

(c) pass such other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

FILED BY

(Sushma S….)

ADVOCATE FOR RESPONDENT NO. 5

DRAWN BY:

FILED ON:

Death Penalty revisited

Fali Nariman has an interesting take on the question of capital punishment, predicting that the sentence will stay till the criminal justice system as a whole becomes efficient and effective generally.

Forest Bill

An argument in support of the draft Forest Bill's attempt to reconcile the interests of the forest and its folks.

Planning Commission for gay rights

Of all bodies, the Planning Commission has recommended the repeal of s. 377 of the Indian Penal Code which criminalises homosexual behaviour, as well as asked for the legalisation of sex-work. These moves are recommended as essential in the anti-HIV/AIDS programme. The view is also at odds with that of the Home Ministry, which recently opposed the decriminalisation of homosexual behaviour in a petition before the Supreme Court.

Controvery over Sexual Harrassment Bill

Women's groups are divided over whether a woman consumer should also be protected from sexual harrassment in the workplace, besides the woman employee.

President reopens death penalty debate

The President Abdul Kalaam has suggested that all the death row inmates should be granted pardon. This move is certain to revive the death row debate in the country.

Sikh riots cases to be re-opened

The government seems to have decided to prosecute the top leaders involved in the anti-sikh riots.

Abolish surnames to abolish caste

The National Commission for SCs/STs has come out with a radical proposal to abolish all hindu surnames which denote castes. The political debate that ensues would be very interesting to watch.

Governemnt refuses to disclose information on Gujarat riots

The Central Government has refused to disclose information sought by teh Nanavati Commission probing the Gujarat riots, on the grounds that it would injure public interest. It is interesting how the case proceeds, especially under the new Right to Information Act.

Custodial killing

A strike against a custodial killing in Manipur underlines the urgent need for police reforms.

Right to Information Act comes into force

The Right to Information Act has finally come into force.

Compulsory registration of marriages

The National Commission for Women is drafting a law to make it compulsory to register marriages, mainly to curb child marriage and ensure that women have given their consent to the marriage.

Moral Policing in Chennai

The moral policing in Chennai continues. After dress code in universities, hotels are being targetted for holding 'obscene' parties. Where are our liberal values?

Sexual Harrassment Bill

The draft Sexual Harrassment Bill has come in for appreciation for its progressive provisions.

Right to information Rules

The Rules under the Right to Information Act have been notified.

Whistleblower Protection Act

The government is finally moving to initiate legislation to ensure the protection of whistle-blowers.

Taslima's book ban revoked

The Calcutta High Court has declared the ban on Tasleema Nasreen's controversial book 'Dwikhandita' as invalid.

Working of the mid-day meal scheme

This short survey has interesting insights into the working of the mid-day meal scheme.

Free education to the lone girl child

While the government's declaration that a single girl child wihtout any siblings would get free education has been lauded, it has also drawn in criticism for mixing the goals of empowering girls with family planning objectives.

Social security for the unorganised sector

The increased focus on providing social security to the unorganised sector workers is welcome.

Right to education costs

The Right to Education Bill to be introduced in the next session of the Parliament has raised financial problems for the states, who don't want to foot the bill.