IN the usual procedure of filing appeal in

 

 

IN
THE HON’BLE SUPREME COURT OF INDIA

(UNDER
ARTICE 136 OF THE CONSTITUTION)

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IN
THE MATTER OF

 

MR. RAJAT                                                                                             
……PETITIONER

 

                                                                            v/s

 

UNION OF XERBIA                                                                            
…….RESPONDENT

 

 

 

SPECIAL LEAVE PETITION
UNDER ARTICLE 136

 

 

 

UPON
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT IN THE HON’BLE SUPREME COURT OF
XERBIA

 

 

TABLE OF CONTENTS

 

1.     
 

JURISDICTION

Pg.
No.: 3

2.     
 

LIST OF ABBREVATIONS

Pg. No.: 4

3.     
 

INDEX OF AUTHORITY

Pg.
No.: 5-7

4.     
 

STATEMENT OF FACTS

Pg.
No.: 8-12

5.     
 

ISSUES RAISED

Pg.
No.: 13

6.     
 

SUMMARY OF ARGUMENTS

Pg.
No.: 14-16

7.     
 

ARGUMENTS ADVANCED

Pg. No.: 17-30

8.     
 

PRAYER

Pg. No.: 31

 

 

 

 

 

                                   STATEMENT OF
JURISDICTION

 

The Petitioner has approached the court under Article 136 of the Xerbian
Constitution, the Supreme Court can grant special leave for appeal from “any
court or tribunal”, viz from any subordinate court below the High Court, even
without following the usual procedure of filing appeal in the High Court or
even where the law applicable to the dispute does not make provision for such
an appeal.1

ARTICLE 136: SPECIAL
LEAVE TO APPEAL BY THE SUPREME COURT.

1.      Notwithstanding
anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the
territory of India.

 

2.      Nothing
in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.

 

 

 

 

 

 

 

 

 

 

LIST OF ABBREVIATIONS

S. No

Short form

Full form

1.

SC

Supreme
Court.

2.

HC

High
Court.

3.

Ld.

Learned.

4.

&

And.

5.

MANU

Manupatra.

6.

Ors.

Others.

7.

Anr.

Another.

8.

AIR

All
India Reporter.

9.

Mad.

Madras.

10.

Vs.

Versus.

11.

Cr.P.C.

Code
of Criminal Procedure.

12.

 

 

13.

Cr.L.J.

Criminal
Law Journal

14.

 

 

15.

 

 

16

SCC

Supreme
Court Cases

 

 

 

                               

                                  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATEMENT OF FACTS

 

BACKDROP: Xerbia
is a federal democratic republic with rule of law, independent Judiciary, free
media and vibrant civil society. The Constitutional and legal system of Xerbia
is identical to that of “Union of India”. Olicana is one of the western States
under the “Union of Xerbia” having its own Legislative Assembly. Having a
similar Judicature, the rights and penalties with respect to the Lesbian Gay
Bisexual Transgender (LGBT) community also remain synonymous to that of Union
of India. Further State of Xerbia is also a signatory to United Nations Human
Rights Commission (UNHRC), where it held an abstention to the resolution passed
in the year 2011 and 2016 respectively under the International Gay and Lesbian
Human Rights Commission (IGLHRC), established in pursuance of the statutory
provisions of United Nations Human Rights Commission (UNHRC).

 

MARRIAGE AND FILING OF
PETITION IN THE FAMILY COURT:

Mr.
Rajat and Mrs. Riyah both tied the knot in the year 2017 in- compliance with
the recognized Hindu rites and ceremonies followed by a registration of their
marriage under Matrimonial law of the country. Since the beginning of the
marriage there was a constant effort on Mrs. Riya’s part to cohabitate the
marriage but in vain. Mr. Rajat and Rajesh were partners in A partnership
firm even before their marriage. But the constant workload and pressure
accompanied by an incremented time spent together resulted in a subtle yet a
strong attraction between the two followed by them cohabitating their
relationship in violation of penal laws of the country. After
an unsuccessful wedlock for the period of 3 months, when Rajat could not handle
the pressure of constant and repetitive arguments of his wife, he therefore
proceeded with the decision of abandoning his wife
and commences a live-in relationship with Rajesh.

 

 

FILING OF PETITION IN THE
HIGH COURT AND DISMISSAL OF THE SAME:

While
the petition was still pending in the family court, a writ petition was filed
by Mr. Rajat in the High court of Olicana challenging the constitutional
validity of matrimonial law which forces him to cohabit with a person against
his will, and penal law of the country which prohibits him from entering into
unnatural relationship. He contended that humans should be allowed to live a
dignified life as provided under the constitution of the country, thereby making
sure that even the penal law should be in cognizance with the constitution of
the country. However, the High Court dismissed the petition stating that both
the sections of the concerned statues are constitutionally valid.

FILING OF SLP IN THE
SUPREME COURT OF XERBIA

Aggrieved
by the decision of the High Court he filed a Special Leave Petition before the
Hon’ble Supreme Court invoking the right of privacy.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ISSUES RAISED.

 

THE FOLLOWING ISSUES ARE TO BE ABJUDICATED IN THE
PRESENT MATTER.

 

ISSUE 1. WHETHER OR NOT THE PRESENT SLP FILED BY THE
PETITIONER MAINTANABLE?

1.1. LOCUS STANDI OF THE
PETITIONER.

1.2.INVOCATION
OF ARTICLE 136- WHEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE ARISES.

 

ISSUE 2. WHETHER OR NOT SECTION 377 OF THE INDIAN PENAL CODE
CONSTITUTIONALLY VALID?

2.1  
SECTION
377 OF IPC- VIOLATIVE OF ARTICLE 21 OF THE XERBIAN CONSTITUTION.

2.2  
SECTION
377 OF IPC- VIOLATIVE OF ARTICLE 14 OF THE XERBIAN CONSTITUTION.

2.3  
SECTION
377 OF IPC- VIOLATIVE OF ARTICLE 15 OF THE XERBIAN CONSTITUTION.

2.4  
SECTION
377 OF IPC- VIOLATIVE OF ARTICLE 19 OF THE XERBIAN CONSTITUTION.

 

 

 

 

 

 

 

 

ISSUE 1.
WHETHER OR NOT THE PRESENT SLP FILED BY
THE PETITIONER MAINTANABLE?

It
is humbly submitted that the Special Leave Petition against the judgment of
Hon’ble High Court is not maintainable under Article 136 of the Constitution of
India. 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.2

It
is humbly submitted that 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 A. Also, the Supreme Court should restrict itself to interfere in
the decisions of lower court. B
Furthermore, the question involved in the present case is outside the
jurisdiction of this court, thus entitled to be dismissed C.

A.   
NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES
EXIST AND SUBSTANTIAL

 

It
is most humbly submitted before this Honourable Court that the SC will not
interfere with the concurrent finding of the courts below unless of course the
findings are perverse or vitiated by error of law or there is gross miscarriage
of justice.

Article
136 does not confer a Right of Appeal, but merely, a discretionary power to the
Supreme Court to be exercised for satisfying the demands of justice under
exceptional circumstances3. The SC
observed in the Pritam Singh v. State,4 in
explaining how the discretion will be exercised generally in granting SLP: The
wide discretionary power with which this court is invested under it is to be
exercised sparingly and in exceptional cases only and as far as possible a more
or less uniform standard should be adopted in granting special leave in the
wide range of matters which can come up before it under article
136. Circumspection and circumscription must induce the Court to interfere with
the decision under challenge only if the extraordinary flaws or grave injustice
or other recognized grounds are made out.5

It is contended by the respondent that the appellant must show that
exceptional and special circumstances exists and that if there is no
interference, substantial and grave injustice will result and the case has
features of sufficient gravity to warrant review of the decision appealed
against on merits. Only then the court would exercise its overriding powers
under Art. 136. Special leave will not be granted when there is no failure of
justice or when substantial justice is done, though the decision suffers from
some legal errors.6

Although the power has been held to be plenary, limitless7,
adjunctive, and unassailable8, in M. C.
Mehta v. Union of India9
and Aero Traders Private Limited v.
Ravinder Kumar Suri10,
it was held that the powers under
Article 136 should be exercised with caution and in accordance with law and set
legal principles.

 

B.     NON-INTERFERENCE IN THE DECISION OF
THE LOWER COURTS         

If it appears prima facie that the order in question cannot be justified
by any judicial standard, the ends of justice and the need to maintain judicial
discipline require the Supreme Court to intervene11; the
Supreme Court in this case pointed out the errors of the High Court, but, did
not interfere in the decision of the High Court. The Supreme Court does not
interfere with the conclusion arrived at by the High Court if it has taken all
the relevant factors into consideration and there has been no misapplication of
the principles of law.12

Normally, in exercising its jurisdiction under Article 136, the Supreme
Court does not interfere with the findings of the fact concurrently arrived at
by the tribunal and the High Court unless there is a clear error of law or
unless some important piece of evidence has been omitted from consideration.13 Though
Article 136 is conceived in widest terms, the practice of the Supreme Court is
not to interfere on questions of fact except in exceptional cases when the
finding is such that it shocks the conscience of the court.14

 

C.    MATTERS RAISED IN THE PRESENT SLP
ARE OUTSIDE THE COMPETENCE OF THIS COURT

In the instant case, the two matters raised before this Hon’ble court
are outside its competence. Firstly, the question of implementation of uniform
civil code is a matter of national policy and the court should not interfere in
such matter 1. Secondly, the act
of repealing Section 377 is matter of legislative competence and thus court
should has no power to rewrite a law in the garb of judicial review 2.

1.      No Interference of Court in Matter
of National Policy

It is the general rule that court would not interfere with matters of
legislative policy15.Act of
implementing Uniform Civil Code comes under the purview of national policy. It
is not for the Courts to determine whether a particular policy or particular
decision taken fulfilment of that policy is fair. They are concerned only with
the manner in which those decisions have been taken, if that manner is unfair,
the decision will be tainted with ‘procedural impropriety’.16 In
Maharshi Avadhesh v. Union of India17,
Supreme Court had specifically declined to issue a writ directing the respondents to consider the question of enacting a
Common Civil Code for all citizens of India holding that the issue raised being
a matter of policy, it was for the Legislature to take effective steps as the
Court cannot legislate. It is the state which is charged with the duty of
securing a uniform civil code for the citizens of the country and it only has
the legislative competence to do so. Moreover, Article 44 forms part of the
Directive Principles of State Policy, this court has no power to give
directions for its enforcement18.

Hence, it is submitted that no directions can be issued by the court for
the purpose of implementing uniform civil code as it is a matter fit for the
legislature to act upon.

2.      Repealment of Section 377 is a
Legislative Task.

In our country, the legislature and the judiciary have separate roles.
The Judiciary dispassionately interprets law. The Legislature can make new laws
and alter old ones. The Indian Penal Code is placed under the Concurrent List
of the Constitution, meaning that both Parliament and State Legislatures are
competent to amend it. In keeping with the federal structure of our governance,
State Legislatures may amend a central law subject to approval of the
President. Only lawmakers and not the courts could change a colonial-era law
that bans homosexual acts and makes them punishable by up to a decade in
prison. The court can resort to reading down a law to render it constitutional,
but in that direction, it cannot change the essence of the law or create a new
law that is in its opinion more desirable.19

It is submitted that the competent legislature shall be free to consider
the desirability and propriety of deleting Section 377 IPC from the statute
book or amend the same.

 

 

 

 

 

 

ISSUE 2. WHETHER OR NOT SEC. 377 OF INDIAN PENAL CODE
CONSTITUTIONALLY VALID?

It is most
respectfully submitted before this Hon’ble court that the Sec. 377 of the
Indian Penal Code is in consonance with constitutional provisions of the
country and hence constitutionally valid.

1 Bharat Bank
vs. Employees of Bharat Bank, AIR 1950 SC 183.

Rajgarh Jute Mill vs. Eastern
Railway, AIR 1958 SC 225. See Also Durga Shankar vs. Raghuraj Singh, AIR 1954
SC 520.

2 Art. 136, Constitution of India,
1950.

3 N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196

4
AIR 1950 SC
169.

5
Shivanand
Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323.

6
Council of
Scientific and Industrial Research v. K. G. S. Bhatt, AIR 1989 SC 1972; State
of H. P. V. Kailash Chand Mahajan, AIR1992 SC 1277; Mathai Joby v. George,
(2010) 4 SCC 358.

7
A.V. Papayya
Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.

8
Zahira
Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.

9
M.C. Mehta
v. Union of India, AIR 2004 SC 4618.

10
Aero Traders
Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15.

11
Union of
India v. Era Educational Trust, AIR 2000 SC 1573.

12 DCM v. Union of India, AIR 1987 SC 2414.

13 Mehar Singh v. Shri Moni Gurudwara
Prabandhak Committee, AIR 2000 SC 492.

14 Panchanan Misra v. Digambar Mishra, AIR 2005 SC 129

15
D. C. Bhatia
v. Union of India, (1995) 1 SCC 104.

16 CCSU v. Min. (1984) 3 All ER 935 (954) HL

17
Maharishi
Avadhesh v. Union of India, (1994) Supp. (1) SCC 713.

 

18 Pannalal Bansilal Pitti v. State of Andhra Pradesh, 199

6 AIR 1023.

19 Suresh Kumar Koushal & Anr. v.
Naz Foundation & Ors. AIR 2014 SC 563.

 

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