Type: Research Essays
Sample donated: Regina Hansen
Last updated: August 23, 2019
INTHE HON’BLE SUPREME COURT OF INDIA(UNDERARTICE 136 OF THE CONSTITUTION) INTHE MATTER OF MR. RAJAT ……PETITIONER v/s UNION OF XERBIA …….RESPONDENT SPECIAL LEAVE PETITIONUNDER ARTICLE 136 UPONWRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT IN THE HON’BLE SUPREME COURT OFXERBIA 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 OFJURISDICTION The Petitioner has approached the court under Article 136 of the XerbianConstitution, the Supreme Court can grant special leave for appeal from “anycourt or tribunal”, viz from any subordinate court below the High Court, evenwithout following the usual procedure of filing appeal in the High Court oreven where the law applicable to the dispute does not make provision for suchan appeal.1 ARTICLE 136: SPECIALLEAVE TO APPEAL BY THE SUPREME COURT.1. Notwithstandinganything in this Chapter, the Supreme Court may, in its discretion, grantspecial leave to appeal from any judgment, decree, determination, sentence ororder in any cause or matter passed or made by any court or tribunal in theterritory of India.
2. Nothingin clause (1) shall apply to any judgment, determination, sentence or orderpassed or made by any court or tribunal constituted by or under any lawrelating 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: Xerbiais a federal democratic republic with rule of law, independent Judiciary, freemedia and vibrant civil society. The Constitutional and legal system of Xerbiais identical to that of “Union of India”. Olicana is one of the western Statesunder the “Union of Xerbia” having its own Legislative Assembly. Having asimilar Judicature, the rights and penalties with respect to the Lesbian GayBisexual Transgender (LGBT) community also remain synonymous to that of Unionof India. Further State of Xerbia is also a signatory to United Nations HumanRights Commission (UNHRC), where it held an abstention to the resolution passedin the year 2011 and 2016 respectively under the International Gay and LesbianHuman Rights Commission (IGLHRC), established in pursuance of the statutoryprovisions of United Nations Human Rights Commission (UNHRC).
MARRIAGE AND FILING OFPETITION IN THE FAMILY COURT:Mr.Rajat and Mrs. Riyah both tied the knot in the year 2017 in- compliance withthe recognized Hindu rites and ceremonies followed by a registration of theirmarriage under Matrimonial law of the country. Since the beginning of themarriage there was a constant effort on Mrs. Riya’s part to cohabitate themarriage but in vain. Mr.
Rajat and Rajesh were partners in A partnershipfirm even before their marriage. But the constant workload and pressureaccompanied by an incremented time spent together resulted in a subtle yet astrong attraction between the two followed by them cohabitating theirrelationship in violation of penal laws of the country. Afteran unsuccessful wedlock for the period of 3 months, when Rajat could not handlethe pressure of constant and repetitive arguments of his wife, he thereforeproceeded with the decision of abandoning his wifeand commences a live-in relationship with Rajesh.
FILING OF PETITION IN THEHIGH COURT AND DISMISSAL OF THE SAME:Whilethe petition was still pending in the family court, a writ petition was filedby Mr. Rajat in the High court of Olicana challenging the constitutionalvalidity of matrimonial law which forces him to cohabit with a person againsthis will, and penal law of the country which prohibits him from entering intounnatural relationship. He contended that humans should be allowed to live adignified life as provided under the constitution of the country, thereby makingsure that even the penal law should be in cognizance with the constitution ofthe country. However, the High Court dismissed the petition stating that boththe sections of the concerned statues are constitutionally valid.FILING OF SLP IN THESUPREME COURT OF XERBIAAggrievedby the decision of the High Court he filed a Special Leave Petition before theHon’ble Supreme Court invoking the right of privacy.
ISSUES RAISED. THE FOLLOWING ISSUES ARE TO BE ABJUDICATED IN THEPRESENT MATTER. ISSUE 1. WHETHER OR NOT THE PRESENT SLP FILED BY THEPETITIONER MAINTANABLE?1.1. LOCUS STANDI OF THEPETITIONER.
1.2.INVOCATIONOF ARTICLE 136- WHEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE ARISES.
ISSUE 2. WHETHER OR NOT SECTION 377 OF THE INDIAN PENAL CODECONSTITUTIONALLY VALID?2.1 SECTION377 OF IPC- VIOLATIVE OF ARTICLE 21 OF THE XERBIAN CONSTITUTION.2.2 SECTION377 OF IPC- VIOLATIVE OF ARTICLE 14 OF THE XERBIAN CONSTITUTION.2.3 SECTION377 OF IPC- VIOLATIVE OF ARTICLE 15 OF THE XERBIAN CONSTITUTION.
2.4 SECTION377 OF IPC- VIOLATIVE OF ARTICLE 19 OF THE XERBIAN CONSTITUTION. ISSUE 1.WHETHER OR NOT THE PRESENT SLP FILED BYTHE PETITIONER MAINTANABLE?Itis humbly submitted that the Special Leave Petition against the judgment ofHon’ble High Court is not maintainable under Article 136 of the Constitution ofIndia. Article 136 empowers the Supreme Court to grant in discretion Specialleave to Appeal from any judgement, decree, determination, sentence or order inany cause or matter passed or made by any court or tribunal in the territory ofIndia.
2Itis humbly submitted that SLP is not maintainable as Special Leave cannot begranted when substantial justice has been done and no exceptional or specialcircumstances exist for case to be maintainable A. Also, the Supreme Court should restrict itself to interfere inthe decisions of lower court. BFurthermore, the question involved in the present case is outside thejurisdiction of this court, thus entitled to be dismissed C.A. NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCESEXIST AND SUBSTANTIAL Itis most humbly submitted before this Honourable Court that the SC will notinterfere with the concurrent finding of the courts below unless of course thefindings are perverse or vitiated by error of law or there is gross miscarriageof justice.
Article136 does not confer a Right of Appeal, but merely, a discretionary power to theSupreme Court to be exercised for satisfying the demands of justice underexceptional circumstances3. The SCobserved in the Pritam Singh v. State,4 inexplaining how the discretion will be exercised generally in granting SLP: Thewide discretionary power with which this court is invested under it is to beexercised sparingly and in exceptional cases only and as far as possible a moreor less uniform standard should be adopted in granting special leave in thewide range of matters which can come up before it under article136. Circumspection and circumscription must induce the Court to interfere withthe decision under challenge only if the extraordinary flaws or grave injusticeor other recognized grounds are made out.5It is contended by the respondent that the appellant must show thatexceptional and special circumstances exists and that if there is nointerference, substantial and grave injustice will result and the case hasfeatures of sufficient gravity to warrant review of the decision appealedagainst on merits. Only then the court would exercise its overriding powersunder Art. 136.
Special leave will not be granted when there is no failure ofjustice or when substantial justice is done, though the decision suffers fromsome legal errors.6Although the power has been held to be plenary, limitless7,adjunctive, and unassailable8, in M. C.
Mehta v. Union of India9and Aero Traders Private Limited v.Ravinder Kumar Suri10,it was held that the powers underArticle 136 should be exercised with caution and in accordance with law and setlegal principles.
B. NON-INTERFERENCE IN THE DECISION OFTHE LOWER COURTS If it appears prima facie that the order in question cannot be justifiedby any judicial standard, the ends of justice and the need to maintain judicialdiscipline require the Supreme Court to intervene11; theSupreme Court in this case pointed out the errors of the High Court, but, didnot interfere in the decision of the High Court. The Supreme Court does notinterfere with the conclusion arrived at by the High Court if it has taken allthe relevant factors into consideration and there has been no misapplication ofthe principles of law.12Normally, in exercising its jurisdiction under Article 136, the SupremeCourt does not interfere with the findings of the fact concurrently arrived atby the tribunal and the High Court unless there is a clear error of law orunless some important piece of evidence has been omitted from consideration.13 ThoughArticle 136 is conceived in widest terms, the practice of the Supreme Court isnot to interfere on questions of fact except in exceptional cases when thefinding is such that it shocks the conscience of the court.14 C. MATTERS RAISED IN THE PRESENT SLPARE OUTSIDE THE COMPETENCE OF THIS COURTIn the instant case, the two matters raised before this Hon’ble courtare outside its competence.
Firstly, the question of implementation of uniformcivil code is a matter of national policy and the court should not interfere insuch matter 1. Secondly, the actof repealing Section 377 is matter of legislative competence and thus courtshould has no power to rewrite a law in the garb of judicial review 2.1. No Interference of Court in Matterof National PolicyIt is the general rule that court would not interfere with matters oflegislative policy15.Act ofimplementing Uniform Civil Code comes under the purview of national policy.
Itis not for the Courts to determine whether a particular policy or particulardecision taken fulfilment of that policy is fair. They are concerned only withthe manner in which those decisions have been taken, if that manner is unfair,the decision will be tainted with ‘procedural impropriety’.16 InMaharshi Avadhesh v. Union of India17,Supreme Court had specifically declined to issue a writ directing the respondents to consider the question of enacting aCommon Civil Code for all citizens of India holding that the issue raised beinga matter of policy, it was for the Legislature to take effective steps as theCourt cannot legislate. It is the state which is charged with the duty ofsecuring a uniform civil code for the citizens of the country and it only hasthe legislative competence to do so. Moreover, Article 44 forms part of theDirective Principles of State Policy, this court has no power to givedirections for its enforcement18.
Hence, it is submitted that no directions can be issued by the court forthe purpose of implementing uniform civil code as it is a matter fit for thelegislature to act upon.2. Repealment of Section 377 is aLegislative Task.In our country, the legislature and the judiciary have separate roles.The Judiciary dispassionately interprets law.
The Legislature can make new lawsand alter old ones. The Indian Penal Code is placed under the Concurrent Listof the Constitution, meaning that both Parliament and State Legislatures arecompetent to amend it. In keeping with the federal structure of our governance,State Legislatures may amend a central law subject to approval of thePresident. Only lawmakers and not the courts could change a colonial-era lawthat bans homosexual acts and makes them punishable by up to a decade inprison. 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 newlaw that is in its opinion more desirable.
19It is submitted that the competent legislature shall be free to considerthe desirability and propriety of deleting Section 377 IPC from the statutebook or amend the same. ISSUE 2. WHETHER OR NOT SEC. 377 OF INDIAN PENAL CODECONSTITUTIONALLY VALID?It is mostrespectfully submitted before this Hon’ble court that the Sec.
377 of theIndian Penal Code is in consonance with constitutional provisions of thecountry and hence constitutionally valid. 1 Bharat Bankvs. Employees of Bharat Bank, AIR 1950 SC 183.Rajgarh Jute Mill vs. EasternRailway, AIR 1958 SC 225. See Also Durga Shankar vs.
Raghuraj Singh, AIR 1954SC 520. 2 Art. 136, Constitution of India,1950.3 N.
Suriyakala v. A. Mohandoss, (2007) 9 SCC 196 4AIR 1950 SC169.5ShivanandGaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323.
6Council ofScientific and Industrial Research v. K. G. S. Bhatt, AIR 1989 SC 1972; Stateof H. P. V. Kailash Chand Mahajan, AIR1992 SC 1277; Mathai Joby v.
George,(2010) 4 SCC 358.7A.V.
PapayyaSastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.8ZahiraHabibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.9M.C. Mehtav. Union of India, AIR 2004 SC 4618.
10Aero TradersPrivate Limited v. Ravider Kumar Suri, AIR 2005 SC 15.11Union ofIndia v. Era Educational Trust, AIR 2000 SC 1573.12 DCM v. Union of India, AIR 1987 SC 2414.
13 Mehar Singh v. Shri Moni GurudwaraPrabandhak Committee, AIR 2000 SC 492.14 Panchanan Misra v. Digambar Mishra, AIR 2005 SC 12915D. C.
Bhatiav. Union of India, (1995) 1 SCC 104.16 CCSU v.
Min. (1984) 3 All ER 935 (954) HL17MaharishiAvadhesh v. Union of India, (1994) Supp. (1) SCC 713.
18 Pannalal Bansilal Pitti v. State of Andhra Pradesh, 1996 AIR 1023.19 Suresh Kumar Koushal & Anr. v.Naz Foundation & Ors.
AIR 2014 SC 563.