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SC issues notice to Centre over Arunachal issue

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New Delhi: The Supreme Court on Wednesday issued notice to the central government and Arunachal Pradesh Governor Jyoti Prasad Rajkhowa on a plea challenging the imposition of President’s Rule in the north-eastern state on January 26.

An apex court constitution bench of Justice Jagdish Singh Khehar, Justice Dipak Misra, Justice Madan B. Lokur, Justice Pinaki Chandra Ghosh and Justice N.V. Ramana also ordered the centre to file its response, if any, by January 29 and directed further hearing in the matter on Monday (February 1).

The court recorded that senior counsel Satya Pal Jain, appearing for Governor Rajkhowa, “undertakes to furnish a copy of the governor’s report and other material recommending issuance of a proclamation under Article 356 of the Constitution of India, to the court in a sealed cover”.

The court directed that the “original record be kept available by the attorney general during the hearing”.

The court gave liberty to the petitioner, Congress chief whip in Arunachal Pradesh Rajesh Tacho, to amend the plea to “assail the report of the governor, and the consequential (presidential) proclamation”.

The court directed that Tacho be provided, during the course of the day, the date on which Rajkhowa sent a report recommending the imposition of President’s Rule.

At the outset of the hearing, senior counsel Fali S. Nariman told the apex court that ever since the last hearing on February 22, Arunachal Pradesh had been put under President’s Rule and two advisors appointed to assist the governor in running the affairs of the state.

Seeking the date on which the governor recommended the imposition of President’s Rule, Nariman said senior counsel Harish Salve, who appeared for the governor, told the court on January 14 that nothing untoward would be done to precipitate the situation.

Describing as “crucial” the date on which President’s Rule recommendation was sent by Rajkhowa, senior counsel Kapil Sibal sought to know the grounds and material relied upon by the governor while making the recommendations.

Opposing the plea, Attorney General Mukul Rohatgi said that the governor’s report was confidential and could not be shared with petitioner Tacho. However, he said, it could be shared with the bench.

Nariman contested Rohatgi’s plea that the governor’s report was confidential as he cited an earlier seven-judge bench judgment in former Karnataka chief minister late S.R. Bommai’s case, wherein the court said that the governor’s report was not confidential.

Justice Lokur confronted the attorney general with the apex court judgment wherein the governor’s report was reproduced.

The presidential proclamation mentions “a” report by the governor, Justice Ramana pointed out as Rohatgi said there were a series of reports by Governor Rajkhowa.

“Whatever is the worth of this petition (by Rajesh Tacho), you reply. You may accept it or you may not accept it,” the court observed as the AG contested the maintainability of the plea challenging the cabinet decision to recommend President’s Rule.

Contending that the cabinet recommendation was immune from challenge, Rohatgi said that unless there is an order, decree or a crystallised situation, you can’t challenge it.

As the AG told the court that there was no challenge to the presidential proclamation in the matter before the court, Nariman said the attorney general could not be technical in his approach.

Rohatgi said it was not a question of his getting technical but every proceeding of the court is governed by rules and procedures.

The Congress on January 25 moved the Supreme Court challenging the cabinet decision to impose President’s Rule in Arunachal Pradesh on the recommendation of Governor Jyoti Prasad Rajkhowa.

The union cabinet on January 24 decided to impose President’s Rule. (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.
Pixabay

“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.

Homosexuality, India
People Participated in Hundreds for the Gay Pride Parade Held In Delhi.

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.

Homosexuality, India
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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)