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
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
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
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
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
DEPONENT
IN THE SUPREME COURT OF
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.
TO
HON’BLE THE CHIEF JUSTICE OF
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 172nd 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
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
(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
FILED BY
(Sushma S….)
ADVOCATE FOR RESPONDENT NO. 5
DRAWN BY:
FILED ON:
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