Wednesday, April 07, 2010

Naz Foundation case: Update

The Naz Foundation case is coming up before the Chief Justice's Bench tomorrow. It is listed as Item No.8. The causelist shows that there are as many as 13 SLPs which will be heard together. Meanwhile, one of our readers, K.V.Dhananjay, has raised the following interesting issue with regard to the hearing of the case:

The decision of the Supreme Court in the case of Laloo Prasad Yadav v. State of Bihar delivered on April 1st, 2010 establishes a principle that where the Government of India waives its right to appeal a decision of a court, even a directly-and-immediately affected State Government cannot step into the shoes of the Government of India and prefer an appeal in place of the Government of India.

Although the above judgment was delivered as an interpretation of the provisions of the Criminal Procedure Code, the reasoning employed by the Supreme Court would have equal application to all other cases where the proper Government waives its right to appeal and a different party seeks to appeal in place of the proper Government.

In the above case, the Government of India, despite public furore, chose not to appeal the acquittal of Laloo Prasad Yadav. This inaction led the Bihar Government to substitute itself for the Government of India and to appeal the acquittal before the Higher Court. The Supreme Court has held that the State Government did not have locus to compensate for the absence of appeal by the Government of India, and that if the Government of India chose not to appeal, the matter ends there.

The above reasoning, therefore, squarely applies also to the appeals preferred by private parties against the Naaz judgment before the Supreme Court. The Government of India was the losing Respondent in the Delhi High Court in the Naaz matter, and it took a conscious decision to not appeal the Naaz judgment to the Supreme Court.

The Naaz appeals to the Supreme Court is not even a case where any State Government has sought to appeal in place of the Government of India. Rather, it is a case where purely private parties are asking the Supreme Court to allow them to compensate for the absence of the Government of India and to appeal Naaz judgment. Applying the central principle of the Constitution Bench decision in Laloo Prasad Yadav’s case, the Supreme Court is now bound to dismiss all appeals filed by private parties against the Naaz judgment - given that the Naaz appeals will be heard on Thursday by the Supreme Court and this would be the first practical occasion for the Court to apply the principle it has just delivered in the Laloo Prasad Yadav judgment.

If an analogy could be drawn here and a State Government could be likened to a ‘child’ and the Central Government to a ‘father’, the Court has essentially held that not even a ‘child’ can appeal in place of the ‘father’. The Naaz judgment appeals are more in the nature of a ‘neighbour’ wanting to appeal in place of the ‘father’! The obvious legal conclusion is that the appeal preferred by private parties is not at all maintainable, and the Naaz appeals are liable to be dismissed forthwith.

There is not ONE argument that the private parties in the Naaz appeal could possibly make which the Government of Bihar could not have made in the Laloo Yadav’s case.

However, some might argue that the facts in Laloo Yadav’s case and in Naaz Foundation are very diverse from one another, and that the judgment in Laloo Yadav’s case cannot be applied to the Naaz appeals. Notwithstanding huge diversity in facts, the principle of law that one gathers from Laloo Yadav’s case is fully applicable to the Naaz appeals.

At any rate, the Laloo Prasad decision appears to have not accorded any weightage to the argument that a different party who appeals could suffer from a lack of information, and that such lack of information could prejudice the appeal. Similarly, the Supreme Court did not accord any weightage to the argument that a higher Court could, in exercise of its inherent powers, allow a different party to appeal in place of the original litigant on grounds of Public Policy. If at all the Court were to be allow the Naaz appeals to continue by evolving a new legal principle based on the above two arguments, such new principle is bound to cast doubts on the correctness and enduring nature of the decision in Laloo Prasad case. So, should the Naaz appeals continue in Court, the Laloo Yadav decision, too, will have to be reconsidered by the Court.

Therefore, the Laloo Prasad decision rendered 4 days ago now cuts the ground from under the feet of the Naaz appellants.
And, should Naaz appeals be dismissed by the Supreme Court, effective the date of dismissal, Section 377 will cease to operate across India - in the manner decided by the Delhi High Court in the Naaz judgment.
CORRECTION: An earlier version of this post suggested that the decision in the Laloo Prasad case was delivered by a 5-Judge Constitution Bench. This inadvertent error has now been corrected, thanks to a reader pointing it out.
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