Beruflich Dokumente
Kultur Dokumente
Division- A
Roll no. - 04
Justice and Rule of Law are perhaps two of the noblest concepts evolved by
the wit of the man that survived the test of the time throughout the world. To
the Romans, Justice was a goddess whose symbols were a throne that
tempests could not shake, a pulse that passion could not stir, eyes that were
blind to any feeling of favor or ill-will, and the sword that fell on all offenders
with equal certainty and with impartial strength. Ancient Indian culture pays
a similar tribute to dispensers of justice and the Upnishads also proclaim that
Law is the King of Kings. It is more powerful and rigid than they (Kings).
There is nothing higher than law. By its power the weak shall prevail over the
strong and justice shall triumph. Upholding Constitutional morality and
judicial values is indispensable to ensure an individual his inalienable
fundamental rights in the process of dispensing justice. But in the modern
days there has been a precipitate diminution of admiration and a sharp
erosion of the constitutional and judicial values which ought to actuate the
administration of justice. Keeping the morality of the constitution or
preserving, perfecting, and perpetuating it, has evolved as the greatest
challenge for the contemporary States in the twenty first century.
History
The section 377 was introduced by Lord Macaulay as part of the Indian Penal
Code. Section377 is actually rooted in the legacies of the British colonial
state and interlaced colonial anxieties of national, socio-sexual and racial
purity at home and colonies. King Henry VIII in1533 made sodomy a secular
rather than an ecclesiastical crime. In 1860 the punishment for Sodomy was
1 Minu Elizabeth Scaria, Constitutional Morality And Judicial Values,
http://www.legalserviceindia.com/article/l186-Constitutional-Morality-And-JudicialValues.html (visited on 15/04/2016)
who
come
to
embody
2Rudranee Goswami, Historical Evolution Of Section 377 And Its Location Within The
Lgbt Movement In India
https://www.academia.edu/6464351/HISTORICAL_EVOLUTION_OF_SECTION_377_AN
D_ITS_LOCATION_WITHIN_THE_LGBT_MOVEMENT_IN_INDIA (visited on 15/04/2016)
3 Id para 2
4 148 Ind Cas 574
class
of people
forces them
to live their
lives
in a
shadow of
and
Article
21(the
right
to
life
and
liberty
which
harm is done to others. The PIL also stated that the law promotes
homophobia and discriminates against homosexuals. Article 377 is also
noted to be inconsistent with International law-Article 12 of the UDHR and
Article 8 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms by which India abides.8
In its 172nd report, the Law Commission, chaired by Justice Jeevan
Reddy(retd.),recommended the deletion of section 377 in the context of a
redefined law on sexual assault to replace the old law on rape. In the new
definition, sexual assault included oral, anal, vaginal and other forms of
penetrative intercourse, including insertion of objects without consent
between men and men, women and women and men and women within the
ambit of the criminal law. The proposed law also took onboard the concerns
of the child rights movement by defining child sexual abuse as an offence for
the first time. It was in the context of the redefined and broadened definition
of sexual assault that the report recommended the deletion of section 377. 9
Current Judgment
The panel of two Supreme Court judges deciding the case allowed the appeal
and overturned the High Courts previous decision, finding its declaration to
be legally unsustainable10. The Supreme Court ultimately found that
Section 377 IPC does not violate the Constitution and dismissed the writ
petition filed by the Respondents.
In reviewing the reading down of the Section 377 by the High Court, the
Supreme Court stated that the High Court had overlooked the fact that a
miniscule fraction of the countrys population constitute lesbians, gays,
8 Supra note 2
9 Law Commission Of India, Review Of Rape Laws March, 2000, Law Commission
172nd Report
10 Supra note 7
bisexuals or transgenders11 and that over the last 150 years, fewer than 200
persons had been prosecuted under Section 377, concluding from this that
this cannot be made sound basis for declaring that section ultra vires the
provisions of Articles 14, 15 and 21 of the Constitution. 12 The court also
regarded the discriminatory treatment complained of by the Naz Foundation
as a result of Section 377 as being neither mandated nor condoned by the
provision itself and the fact that the police authorities and others misuse
Section 377 was not a reflection of the vires of the provision but instead may
simply be a relevant factor for Parliament to consider whilst judging whether
to amend Section 377.
The Supreme Court tells us that our Constitution, whos Preamble proclaims
a commitment to equality and justice for all, whose Bill of Rights has three
specific Articles dedicated to equality and non-discrimination, nonetheless
relegates Indians to second-class citizenship on the basis of their sexual
orientation. And in so doing, it flies in the face of international law, the dicta
of respected human rights instruments such as the ICCPR and the Universal
Declaration of Human Rights, and puts India in the company of countries
such as Somalia, South Sudan, Yemen and Saudi Arabia. It also upholds a law
that was passed by a British colonial legislator seeking to enforce Victorianera morality upon a subject population that had no say in it. And it
perversely tells a minority to take the case for protecting its rights to the
most majoritarian institution of government, the Parliament. All of which
might be justifiable if it was even remotely supported by constitutional
reasons.
The wolfendien theory where the approach towards homosexuality is
somehow similar to the approach one takes towards morally degrading
occupations such as prostitution. Keeping in mind the debate about the
11 Id
12 Id
rights to equality and freedom of choosing ones choices, the theory further
provided the analogy of how morally degrading occupations can spread by
the very action of them being professed by people and hence attract the
attention of other fellow humans who may want to get indulged in it. This,
while taking place in a large scale, does point towards a society where the
level of moral policing is heinously low.13
Article 19 guarantees the freedom of speech and expression, assembly,
association, movement, residence and profession; each of these freedoms, it
can hardly be disputed, are fundamental for two reasons:
first, they are essential expressions of individual (and, for that matter,
communitarian) personality; in the words of Justice Kennedy in Planned
Parenthood v Casey14:
At the heart of liberty is the right to define ones own concept of existence,
of meaning, of the universe, and of the mystery of human life. people have
organized intimate relationships and made choices that define their views of
themselves and their places in society.15
As Dworkin puts it, these freedoms ensure that every citizen of the polity is
provided the opportunity to contribute towards shaping the moral, cultural
and political environment that she finds herself in and that that, in turn, is
the very essence of government according equal respect and concern to all
its citizens. To this we add Article 25, that guarantees the freedom of
conscience and religion (and further, the entire scheme from Articles 26 to
30); and indeed, arguable the two most important freedoms within this set
13 Alok Gupta, Section 377 and the Dignity of Indian Homosexuals,
http://www.iglhrc.org/sites/default/files/15-1.pdf (visited on 15/04/2016)
14 Planned Parenthood v. Casey, 505 U.S. 833 (1992), Page 19, Para 3, lines 14 to
18
15 Taking rights seriously by Ronald Dowrkin, Chapter 4, Hard Cases, Page 96, Para
2, lines 4 to 8
17
What Dowrkin is trying to say is that the true interpretation of these rules
depends upon the person interpreting them. In the present case if we were
to take into consideration the meaning of article 14, 15 and 21, link it with
the various judgements given by the Supreme Court, the philosophy behind
introduction of these articles by our founding fathers and the interpretation
of provisions relating to rights given to citizens in other jurisdictions, it is
amply clear that the above judgement is incorrect as it takes away the very
basic rights such as right of expression, right to live with dignity and right
to privacy ,from an individual, our founding fathers believed that constitution
was a living being and needed to change with the changing times. They
believed that no generation was as smart, intelligent or knowledgeable that
16 Gautam Bhatia, The Unbearable Wrongness Of Koushal vs Naz,
http://www.outlookindia.com/website/story/the-unbearable-wrongness-of-koushal-vsnaz/288823 (visited on 15/04/2016)
17 Id
it could determine the path for the future generations, hence it provided for
article 368 amending power of the parliament, to be able to amend the
constitution according to the needs of the society.18
Regarding the application of Article 21 of the Constitution, the Supreme Court
stated that the law must be competently legislated whilst also being just, fair and
reasonable, which give rise to notions of legitimate state interest and the principle
of proportionality. The court specifically noted that the right to live with dignity had
been recognized as a part of Article 21. In assessing the High Courts ruling that
Section 377 violated the right to privacy, autonomy and dignity, the Supreme Court
spent little time analyzing the application of Article 21 to Section 377, instead
criticizing the High Court for relying too extensively upon judgments from other
jurisdictions in its anxiety to protect the so-called rights of LGBT persons. It
concluded that Section 377 does not suffer from the vice of unconstitutionality
with no further elaboration.19
18Riya Jain, Article 21 of the Constitution of India Right to Life and Personal Liberty
http://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-tolife-and-personal-liberty/ (visited on 15/04/2016)
19 Ibid 18
20 Supra note 15
all
relevant
constitutional
provisions,
statutes,
and
judicial
precedents, and his judicial opinion would emphasize those sources that are
consistent with the most satisfactory concepts of moral philosophy. Hercules,
in other words, would discover principles from the legal heritage in which he
worked, and he would strive to make the best possible analysis of the
material at his disposal. Because he respects the work of democratic
legislatures, Hercules would accept the authority of a statute that he regrets
as mistaken, but he would try to limit its gravitational force whenever
possible.25
Judge Hercules would especially have the opportunity to employ his
constructive hermeneutics whenever called upon to render decisions in hard
cases of constitutional law. He would, of course, begin with the normal
meaning of the text, but he would not speculate about the specific intent of
the people who wrote and ratified the document.
Because established rights sometimes come in conflict with one another,
certain rights must have priority over others. Our intuitions about justice,
Dworkin writes, presuppose not only that people have rights but that one
among these is fundamental and even axiomatic. This most fundamental of
rights is a distinct conception of the right to equality, which I shall call the
right to equal concern and respect.26
The Constitution embodied with the will of the people to govern them is not
an end but a means to an end i.e. Justice, Social, Economic and Political, a
triune phenomenon inscribed as a pledge in the Preambular glory of our
25 id
26 id
Bibliography
http://www.legalserviceindia.com/article/l186-Constitutional-MoralityAnd-Judicial-Values.html (visited on 15/04/2016)
https://www.academia.edu/6464351/HISTORICAL_EVOLUTION_OF_SECTI
ON_377_AND_ITS_LOCATION_WITHIN_THE_LGBT_MOVEMENT_IN_INDIA
(visited on 15/04/2016)
Law Commission Of India, Review Of Rape Laws March, 2000, Law
Commission 172nd Report
http://www.iglhrc.org/sites/default/files/15-1.pdf(visited on 15/04/2016)
Taking rights seriously by Ronald Dowrkin