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Lokpal law amendment may be taken up for consideration during Monsoon session of Parliament: Supreme Court

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New Delhi, March 28, 2017: The Central government on Tuesday told the Supreme Court that the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014, a stepping stone for operationalising the institution, may be taken up for consideration during the monsoon session of Parliament.

Telling the bench that government was not dragging its feet on taking up the amendment bill, Attorney General Mukul Rohatgi told the bench of Justice Ranjan Gogoi and Justice Navin Sinha that the current session of parliament is devoted to budget and “may be it (amendment bill) will be considered in the monsoon session”.

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He told the court that the selection committee comprising the Prime Minister, Lok Sabha Speaker, Leader of Opposition and the Chief Justice of India can’t nominate the fifth member – the eminent jurist – without the Leader of Opposition being there.

As the government said that it was seized of the issue and opposed any intervention by the court, the court reserved its verdict on a batch of petitions including one by society Common Cause seeking mandamus to the government to take steps for enforcing the law enacted in 2013.

Citing the separation of powers under the Constitution, Rohatgi told the court that “there can’t be a mandamus to bring an Act into force because as parliament can’t ask how courts are functioning or a particular case be decided in a particular time frame” and similarly, courts can’t venture into the law-making province of legislature.

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“Whether they pass, how they pass, how they do, whether they can pass in two minutes, is within the province of the parliament,” he stressed.

Rohatgi said that the amendment to treat the leader of the largest opposition party as Leader of Opposition for the purposes of the Lokpal and Lokayuktas Act, 2013, was just one of the many amendments that are being sought to be made in the statute.

Earlier appearing for Common Cause, senior counsel Shanti Bhushan referred to different laws where leader of the largest opposition party is treated Leader of Opposition for the purposes of the appointment of the Central Bureau of Investigations’ Director or even the Chief Vigilance Commissioner.

He pressed for the direction that in the absences of the Leader of the Opposition, the remaining three member – the Prime Minister, Lok Sabha Speaker and the Chief Justice of India should nominate the fifth member – the eminent jurist – so that the process for the appointment of Lokpal could start.

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Buttressing the point advanced by Bhushan, another counsel Gopal Shankarnarayan drew the attention of the court to the passing of the amendment to Section 44 of the Lokpal and Lokayuktas Act, 2013, dealing with the declaration of assets by the public servants.

He said that in the case of the amendment, the government had the clear intention and it went ahead with it and asked how piecemeal amendment can be given effect to while the other amendments which, according to the government, are essential for operationalising the law are not being pushed by it. (IANS)

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India Gets A Win, Supreme Court Decriminalizes Homosexuality

In December 2013, a Supreme Court bench said that it was for the legislature to look into desirability of deleting section 377 of IPC.

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Homosexuality, India
SC decriminalises homosexuality, victory for gay rights. Pixabay

 In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra partially struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional.

The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.

Reading out the judgment, Chief Justice Misra said attitudes and mentality have to change to accept others’ identity and accept what they are, and not what they should be.

Homosexuality, India
LGBTIQ people have a right to live unshackled from the shadow.
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“It is the constitutional and not social morality which will prevail,” said the court.

The verdict sparked celebrations in the LGBTIQ community across India even as the judgment was being read out. Many of the community members who had assembled outside the apex court jumped in joy and distributed sweets.

Chief Justice Misra said consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.

Section 377 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.

“An individual has full liberty over his or her body and his or her sexual orientation is a matter of one’s choice,” said the Chief Justice.

“Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination. They should be allowed to make their choices,” he added.

Homosexuality, India
In separate but unanimous verdicts, a five-judge Constitution Bench struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional. Pixabay

 

In a concurring judgement, Justice Nariman said homosexuality is “not a mental disorder or disease”.

He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality.

Justice Chandrachud said to deny the LGBTIQ community their right to sexual orientation is a denial of their citizenship and a violation of their privacy.

“They cannot be pushed into obscurity by an oppressive colonial legislation… Sexual minorities in India have lived in fear, hiding as second class citizens,” said Justice Chandrachud, adding “the state has no business to intrude on such matters”.

Justice Indu Malhotra said that history owes an apology to the LGBTIQ community for all that they have suffered on account of the ignorance of the majority about homosexuality.

“LGBTIQ people have a right to live unshackled from the shadow,” she said.

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The Supreme Court verdict, which overruled its own earlier judgment, assumes significance as in the earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality.

The Delhi High Court bench, headed by then Chief Justice A.P. Shah, had in July 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law — finding it unconstitutional and a hurdle in the fight against HIV/AIDS.

In December 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case, had set aside the high court’s judgment and said that it was for the legislature to look into desirability of deleting section 377 of IPC.

The matter was subsequently resurrected in July 2016, when a fresh petition was filed by members of the LGBTIQ community — dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur — which was then marked to the Constitution Bench by a Division Bench.

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The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the court.

Among the petitioners are a batch of current and former students of Indian Institutes of Technology. Claiming to represent more than 350 LGBTIQ alumni, students, staff and faculty from the IITs, the petitioners said that the existence of Section 377 had caused them “mental trauma and illnesses, such as clinical depression and anxiety and relegated some of them to second-class citizenship”. (IANS)