tech_enthu
Regulars
Law or no law, the police can arrest, harass and torture anyone. How often we have heard of drugs being planted or the lady folk threatened to get information? If the police wants to harass they can do it without 377.
W
warthog
oh god what have i done.
admin to make this pandoras box simpler add a poll about whether you support gay marriage\unions and
one more thing vebk you are calling us bigots but you say that those who are against gay are bigots.
hypocrisy
this thread =
admin to make this pandoras box simpler add a poll about whether you support gay marriage\unions and
one more thing vebk you are calling us bigots but you say that those who are against gay are bigots.
hypocrisy
this thread =
Article 21 : The right to life & protection of a person's dignity, autonomy and privacy
Precedent was set when a seven-judge bench ruled in Maneka Gandhi v. Union of India, (1978) that
the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and give additional protection under Article 19.
Any law interfering with personal liberty of a person must satisfy a triple test:
(i) it must prescribe a procedure;
(ii) the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and
(iii) it must also be liable to be tested with reference to Article 14.
As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with the personal liberty must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14, it would be no procedure at all within the meaning of Article 21.
The Court thus expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of the fundamental rights.
This decision in Maneka Gandhi became the starting point for a very significant evolution of the law culminating in the decisions of later cases.
DIGNITY
Dignity as observed by L'Heureux-Dube, J is a difficult concept to capture in precise terms . At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit.
At the root of the dignity is the autonomy of the private will and a person's freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.
The expression “dignity of the individual” finds specific mention in the Preamble to the Constitution of India. V.R. Krishna Iyer, J. observed that the guarantee of human dignity forms part of our constitutional culture.
Justice P.N. Bhagwati explained the concept of right to dignity in the following terms:
“... We think that the right to life includes the right to live with human dignity and all that goes along with it,namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. ......... Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.”
The Canadian Supreme Court attempts to capture the concept of dignity in these words :
“Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences.
Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society.”
PRIVACY
Article 12 of the Universal Declaration of Human Rights (1948) refers to privacy and it states:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
Article 17 of the International Covenant of Civil and Political Rights (to which India is a party), refers to privacy and states that:
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation."
The European Convention on Human Rights also states that:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-
being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others."
Here's how it applies in India
In India, our Constitution does not contain a specific provision as to privacy but the right to privacy has, as we shall presently show, been spelt out by our Supreme Court from the provisions of Article 19(1)(a) dealing with freedom of speech and expression, Article 19(1)(d) dealing with right to freedom of movement and from Article 21, which deals with right to life and liberty.
- In Kharak Singh v. The State of U.P., (1964) Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1)(a), and also of the right of movement in Article 19(1)(d), held that the Regulations permitting surveillance violated the fundamental right to privacy. In effect, all the seven learned Judges held that the “right to privacy” was part of the right to “life” in Article 21.
- Further development in privacy law ocurred in Gobind v.State of M.P., (1975) where The learned Judge, Matthew J. referred to Griswold v. Connecticut and Jane Roe v. Henry Wade and observed:
“There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States, 277 US 438, 471 the significance of man’s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the Government a sphere where he should be let alone.”
- Mathew, J. held that privacy – dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior, or where a compelling state interest was shown. If the court then finds that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test.
Then the question would be whether the state interest is of such paramount importance as would justify an infringement of the right. The learned Judge observed that the right to privacy will have to go through a process of case-by-case development. The learned Judge further observed that the right is not absolute.
The issue whether enforcement of morality is a State interest sufficient to justify infringement of fundamental “privacy right” was held not necessary to be considered for purposes of the case. The Court refused “to enter into the controversial thicket whether enforcement of morality is a function of the State.”
- A two-Judge Bench in R. Rajagopal v. State of T.N., (1994) 6 SCC 632, held the right to privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. “It is the right to be left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among many other matters.
In India therefore, the right to privacy thus has been held to protect a “private space in which man may become and remain himself”. The ability to do so is exercised in accordance with individual autonomy. The privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one's sexuality is at the core of this area of private intimacy. If, in expressing one's sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.
Precedent was set when a seven-judge bench ruled in Maneka Gandhi v. Union of India, (1978) that
the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and give additional protection under Article 19.
Any law interfering with personal liberty of a person must satisfy a triple test:
(i) it must prescribe a procedure;
(ii) the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and
(iii) it must also be liable to be tested with reference to Article 14.
As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with the personal liberty must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14, it would be no procedure at all within the meaning of Article 21.
The Court thus expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of the fundamental rights.
This decision in Maneka Gandhi became the starting point for a very significant evolution of the law culminating in the decisions of later cases.
DIGNITY
Dignity as observed by L'Heureux-Dube, J is a difficult concept to capture in precise terms . At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit.
At the root of the dignity is the autonomy of the private will and a person's freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.
The expression “dignity of the individual” finds specific mention in the Preamble to the Constitution of India. V.R. Krishna Iyer, J. observed that the guarantee of human dignity forms part of our constitutional culture.
Justice P.N. Bhagwati explained the concept of right to dignity in the following terms:
“... We think that the right to life includes the right to live with human dignity and all that goes along with it,namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. ......... Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.”
The Canadian Supreme Court attempts to capture the concept of dignity in these words :
“Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences.
Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society.”
PRIVACY
Article 12 of the Universal Declaration of Human Rights (1948) refers to privacy and it states:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
Article 17 of the International Covenant of Civil and Political Rights (to which India is a party), refers to privacy and states that:
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation."
The European Convention on Human Rights also states that:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-
being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others."
Here's how it applies in India
In India, our Constitution does not contain a specific provision as to privacy but the right to privacy has, as we shall presently show, been spelt out by our Supreme Court from the provisions of Article 19(1)(a) dealing with freedom of speech and expression, Article 19(1)(d) dealing with right to freedom of movement and from Article 21, which deals with right to life and liberty.
- In Kharak Singh v. The State of U.P., (1964) Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1)(a), and also of the right of movement in Article 19(1)(d), held that the Regulations permitting surveillance violated the fundamental right to privacy. In effect, all the seven learned Judges held that the “right to privacy” was part of the right to “life” in Article 21.
- Further development in privacy law ocurred in Gobind v.State of M.P., (1975) where The learned Judge, Matthew J. referred to Griswold v. Connecticut and Jane Roe v. Henry Wade and observed:
“There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States, 277 US 438, 471 the significance of man’s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the Government a sphere where he should be let alone.”
- Mathew, J. held that privacy – dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior, or where a compelling state interest was shown. If the court then finds that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test.
Then the question would be whether the state interest is of such paramount importance as would justify an infringement of the right. The learned Judge observed that the right to privacy will have to go through a process of case-by-case development. The learned Judge further observed that the right is not absolute.
The issue whether enforcement of morality is a State interest sufficient to justify infringement of fundamental “privacy right” was held not necessary to be considered for purposes of the case. The Court refused “to enter into the controversial thicket whether enforcement of morality is a function of the State.”
- A two-Judge Bench in R. Rajagopal v. State of T.N., (1994) 6 SCC 632, held the right to privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. “It is the right to be left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among many other matters.
In India therefore, the right to privacy thus has been held to protect a “private space in which man may become and remain himself”. The ability to do so is exercised in accordance with individual autonomy. The privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one's sexuality is at the core of this area of private intimacy. If, in expressing one's sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.
Law or no law, the police can arrest, harass and torture anyone. How often we have heard of drugs being planted or the lady folk threatened to get information? If the police wants to harass they can do it without 377.
Yes they can, and we can talk a lot more about police reforms. But it makes it a little easier for the Police to harass you when they have some legal backing to do it with, then to do it entirely illegally. And if they jail you without any charge, a quick trip to the writ court would set you free and land the concerned officials in deep soup. But if they have s.377 nothing will happen to them, and you will remain behind bars.
admin to make this pandoras box simpler add a poll about whether you support gay marriage\unions
If we have a poll about whether people support the right to bear arms, and the vast majority say "No" will you accept it with grace and will you accept it as the 'right' answer?
one more thing vebk you are calling us bigots but you say that those who are against gay are bigots.
hypocrisy
Uhhh.. were you trying to make a point here, because I truly don't understand what you are trying to say. But to make things clear, I am calling those people bigots who are stubbornly stuck to prejudice, who make decisions and judgments on a huge group of people without knowing or interacting with any of them, and who can't appreciate the differences in people across the world and can't appreciate the vast amount of cultural diversity in this world.
I would call those people bigots who discriminate and spread hate against others on the basis of gender, race, religion, sexual orientation, nationality etc.
Yes they can, and we can talk a lot more about police reforms. But it makes it a little easier for the Police to harass you when they have some legal backing to do it with, then to do it entirely illegally. And if they jail you without any charge, a quick trip to the writ court would set you free and land the concerned officials in deep soup. But if they have s.377 nothing will happen to them, and you will remain behind bars.
admin to make this pandoras box simpler add a poll about whether you support gay marriage\unions
If we have a poll about whether people support the right to bear arms, and the vast majority say "No" will you accept it with grace and will you accept it as the 'right' answer?
one more thing vebk you are calling us bigots but you say that those who are against gay are bigots.
hypocrisy
Uhhh.. were you trying to make a point here, because I truly don't understand what you are trying to say. But to make things clear, I am calling those people bigots who are stubbornly stuck to prejudice, who make decisions and judgments on a huge group of people without knowing or interacting with any of them, and who can't appreciate the differences in people across the world and can't appreciate the vast amount of cultural diversity in this world.
I would call those people bigots who discriminate and spread hate against others on the basis of gender, race, religion, sexual orientation, nationality etc.
Here's an interesting bit
Prof. Ryan Goodman of the Harvard Law School, in his well researched study of the impact of the sodomy laws on homosexuals in South Africa argues that condemnation expressed through the law shapes an individual's identity and self-esteem.
Based on field research, he argues that sodomy laws produce regimes of surveillance that operate in a dispersed manner, and that such laws serve to embed illegality within the identity of homosexuals.
He categorises how sodomy laws reinforce public abhorrence of lesbians and gays resulting in an erosion of self-esteem and self-worth in numerous ways
Basically remove the sodomy law and watch most public abhorrence reduce ?
The studies conducted in different parts of world including India show that the criminalisation of same-sex conduct has a negative impact on the lives of these people. Even when the penal provisions are not enforced, they reduce gay men or women to what one author has referred to as “unapprehended felons”, thus entrenching stigma and encouraging discrimination in different spheres of life.
Here's some good rebuttals to the 'morals' argument
Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.
If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr.Ambedkar in the Constituent Assembly.
While moving the Draft Constitution in the Assembly [Constitutional Assembly Debates : Official Reports Vol.VII: November 4, 1948, page 38], Dr. Ambedkar quoted Grote, the historian of Greece, who had said:
"The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves."
After quoting Grote, Dr. Ambedkar added:
"While everybody recognised the necessity of diffusion of constitutional morality for the peaceful working of the democratic constitution, there are two things interconnected with it which are not, unfortunately, generally recognised.
One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution.
The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution.
......The question is, can we presume such a diffusion of constitutional morality?
Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.”
About the constitution
Granville Austin in his treatise “The Indian Constitution – Cornerstone of A Nation” had said that the Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement.
The core of the commitments to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principles of State Policy. These are the conscience of the Constitution. The Fundamental Rights, therefore, were to foster the social revolution by creating a society egalitarian to the extent that all citizens were to be equally free from coercion or restriction by the state, or by society privately; liberty was no longer to be the privilege of the few.
The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality.
About the state as protector of constitutional morality from a case in S.Africa
“A state that recognises difference does not mean a state without morality or one without a point of view. It does not banish concepts of right and wrong, nor envisage a world without good and evil..... The Constitution certainly does not debar the state from enforcing morality.
Indeed, the Bill of Rights is nothing if not a document founded on deep political morality. What is central to the character and functioning of the State, however, is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution itself.”
Prof. Ryan Goodman of the Harvard Law School, in his well researched study of the impact of the sodomy laws on homosexuals in South Africa argues that condemnation expressed through the law shapes an individual's identity and self-esteem.
Based on field research, he argues that sodomy laws produce regimes of surveillance that operate in a dispersed manner, and that such laws serve to embed illegality within the identity of homosexuals.
He categorises how sodomy laws reinforce public abhorrence of lesbians and gays resulting in an erosion of self-esteem and self-worth in numerous ways
Basically remove the sodomy law and watch most public abhorrence reduce ?
The studies conducted in different parts of world including India show that the criminalisation of same-sex conduct has a negative impact on the lives of these people. Even when the penal provisions are not enforced, they reduce gay men or women to what one author has referred to as “unapprehended felons”, thus entrenching stigma and encouraging discrimination in different spheres of life.
Here's some good rebuttals to the 'morals' argument
Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.
If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr.Ambedkar in the Constituent Assembly.
While moving the Draft Constitution in the Assembly [Constitutional Assembly Debates : Official Reports Vol.VII: November 4, 1948, page 38], Dr. Ambedkar quoted Grote, the historian of Greece, who had said:
"The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves."
After quoting Grote, Dr. Ambedkar added:
"While everybody recognised the necessity of diffusion of constitutional morality for the peaceful working of the democratic constitution, there are two things interconnected with it which are not, unfortunately, generally recognised.
One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution.
The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution.
......The question is, can we presume such a diffusion of constitutional morality?
Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.”
About the constitution
Granville Austin in his treatise “The Indian Constitution – Cornerstone of A Nation” had said that the Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement.
The core of the commitments to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principles of State Policy. These are the conscience of the Constitution. The Fundamental Rights, therefore, were to foster the social revolution by creating a society egalitarian to the extent that all citizens were to be equally free from coercion or restriction by the state, or by society privately; liberty was no longer to be the privilege of the few.
The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality.
About the state as protector of constitutional morality from a case in S.Africa
“A state that recognises difference does not mean a state without morality or one without a point of view. It does not banish concepts of right and wrong, nor envisage a world without good and evil..... The Constitution certainly does not debar the state from enforcing morality.
Indeed, the Bill of Rights is nothing if not a document founded on deep political morality. What is central to the character and functioning of the State, however, is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution itself.”
When questioned earlier by a Swedish delegate on the state of homosexual rights in India at the Periodic Review before the United Nations Human Rights Council, the Solicitor General of India appearing on behalf of India said :
“Around the early 19 Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct. ...
As a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted s.377 in the Indian Penal Code, which brought in the concept of “sexual offences against the order of nature”. Now in India we didn't have this concept of something being “against the order of nature”. It was essentially a Western concept which has remained over the years. Now homosexuality as such is not defined in the Indian Penal Code, and it will be a matter of great argument whether it's “against the order of nature”.
In arguing the case against morality
Moral indignation, howsoever strong, is not a valid basis for overriding individuals's fundamental rights of dignity and privacy.In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.
CONCLUSION
Won on the question of equality & inclusiveness
The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, ”Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.”
If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised.
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act.
Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
JULY 2, 2009 CHIEF JUSTICE
S.MURALIDHAR, J
Phew, good read
By the looks of the arguments put forward i agree that is really a landmark case. Lets see how it plays out in the rest of the country.
“Around the early 19 Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct. ...
As a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted s.377 in the Indian Penal Code, which brought in the concept of “sexual offences against the order of nature”. Now in India we didn't have this concept of something being “against the order of nature”. It was essentially a Western concept which has remained over the years. Now homosexuality as such is not defined in the Indian Penal Code, and it will be a matter of great argument whether it's “against the order of nature”.
In arguing the case against morality
Moral indignation, howsoever strong, is not a valid basis for overriding individuals's fundamental rights of dignity and privacy.In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.
CONCLUSION
Won on the question of equality & inclusiveness
The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, ”Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.”
If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised.
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act.
Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
JULY 2, 2009 CHIEF JUSTICE
S.MURALIDHAR, J
Phew, good read
By the looks of the arguments put forward i agree that is really a landmark case. Lets see how it plays out in the rest of the country.
As for legally the status of this judgment is that:
(a) It applies only to Delhi.
(b) It is open to High courts in other states to interpret s.377 in whatever way they want, though they might consider this judgment (and may either agree or totally disagree).
(c) It can still be appealed in the Supreme Court.
(d) We still have to see what the Parliament does.
Lets look at this again shall we.
If the relevant part of 377 was found violative of the constitution in Delhi why will it not be the same anywhere else in the country ?
After all States don't have their own constitutions, there is just the one.
Yes, an appeal is certainly possible at the Supreme Court level but given the mountain of evidence provided i think its unlikely an appeal would be successful. Also consider it was the Supreme Court that reopened this case after it was thrown out of the High Court in 2004, as a mere 'academic' exercise.
I think for all intents & purposes this is a done deal and will quietly be followed elsewhere in the country.
Heh, the wildcard in this picture is Parliament.
I doubt they can touch this ruling but they can certainly introduce legislation to the effect. Bu then it has to pass a test and the way this thing has been argued it would be a useless exercise. As a token gesture it might appease those against gay rights tho.
The beauty of this ruling so far is that is only beholden to the constitution and not any political party.
(a) It applies only to Delhi.
(b) It is open to High courts in other states to interpret s.377 in whatever way they want, though they might consider this judgment (and may either agree or totally disagree).
(c) It can still be appealed in the Supreme Court.
(d) We still have to see what the Parliament does.
Lets look at this again shall we.
If the relevant part of 377 was found violative of the constitution in Delhi why will it not be the same anywhere else in the country ?
After all States don't have their own constitutions, there is just the one.
Yes, an appeal is certainly possible at the Supreme Court level but given the mountain of evidence provided i think its unlikely an appeal would be successful. Also consider it was the Supreme Court that reopened this case after it was thrown out of the High Court in 2004, as a mere 'academic' exercise.
I think for all intents & purposes this is a done deal and will quietly be followed elsewhere in the country.
Heh, the wildcard in this picture is Parliament.
I doubt they can touch this ruling but they can certainly introduce legislation to the effect. Bu then it has to pass a test and the way this thing has been argued it would be a useless exercise. As a token gesture it might appease those against gay rights tho.
The beauty of this ruling so far is that is only beholden to the constitution and not any political party.
W
warthog
ok i am changing my mind.gays have the right to live but i am only for art 377 repeal which the HC has done.But i vehemently oppose same sex marriage or unions or even imparting homosexuality in education.I still believe that this can be cured by astrology or though stem cells type of medical operation or though psychiatric treatmentas nature=procreate=male+ female.homos are alien to nature but they deserve equality.
Here's what the Pioneer had to say in its edit page.
Section 377 must stay
The Pioneer Edit Desk
Let executive decide in what form
The Delhi High Court’s judgement overturning the law criminalising “carnal intercourse against the order of nature”, as enshrined in Section 377 of the Indian Penal Code, has understandably been welcomed by the ‘queer people’ of India. Whether the people of India are equally ecstatic is a matter of debate that will play out in the coming days and take some time to settle. The Government, of course, has reason to feel trapped between a rock and a hard place: A ‘progressive’ political alliance cannot afford to be seen as contradicting what is being hailed as a ‘progressive’ judgement; at the same time, neither can it afford to offend religious sensitivities, especially those of the Muslims and Christians whose religious leaders are outraged by, what according to them, is an affront to their faith. The court has taken a narrow, constitutional view while declaring that criminalising homosexuality is “violative of Articles 21, 14 and 15 of the Constitution”. But it has not struck down Section 377 in its entirety. To that extent, the court has drawn a clear distinction between “consensual sexual acts of adults in private” and forced sex by way of rape and paedophilia. This may serve as a party pooper for those who mistakenly believe that absolute sanction has been accorded for their unnatural desires and appetite for perversity. Hopefully, prosecution of gay rapists and paedophiles will not be cited as ‘harassment’ of the lesbian, gay, bisexual and transgender community. It is also to be hoped that law enforcement agencies will be adequately and appropriately briefed by authority about Thursday’s judgement — unless it is set aside on appeal in the Supreme Court — lest they confuse the ruling as Section 377 being struck down from the statute book. That would truly endanger the rights of victims of perversity.
Having said that, it would be in order to stress two points. Perhaps the judiciary could have left the task of interpreting Section 377 to accommodate the abhorrent sexual proclivities of a minuscule minority to the executive and the legislature. After all, the social implications of such sweeping change go beyond the strait and the narrow of constitutional egalitarianism which sounds fine on paper and in treacly media commentary, but is bound to clash with established norms of society. This is not to justify either religious orthodoxy or regressive social practices, but to underscore the Indian reality which is far removed from the perception of those cheering Thursday’s judgement. Not everybody looks at sexual deviancy through the prism of an individual’s right to libertarianism. Second, there is absolutely no reason why any debate over Section 377 should be reduced to the claimed persecution of gays. The real issue is of privacy of adults and whether the state has the right to intrude into the private lives of its citizens. The Delhi High Court has not entirely ignored this aspect as its ruling is equally applicable to adult heterosexual couples. But the advocates of a queer version of liberalism have deftly converted Thursday’s judicial pronouncement into a personal victory. This is why the executive and the legislature must intervene before it is too late and regain the initiative on a subject that touches the core of our society, culture and identity.
Section 377 must stay
The Pioneer Edit Desk
Let executive decide in what form
The Delhi High Court’s judgement overturning the law criminalising “carnal intercourse against the order of nature”, as enshrined in Section 377 of the Indian Penal Code, has understandably been welcomed by the ‘queer people’ of India. Whether the people of India are equally ecstatic is a matter of debate that will play out in the coming days and take some time to settle. The Government, of course, has reason to feel trapped between a rock and a hard place: A ‘progressive’ political alliance cannot afford to be seen as contradicting what is being hailed as a ‘progressive’ judgement; at the same time, neither can it afford to offend religious sensitivities, especially those of the Muslims and Christians whose religious leaders are outraged by, what according to them, is an affront to their faith. The court has taken a narrow, constitutional view while declaring that criminalising homosexuality is “violative of Articles 21, 14 and 15 of the Constitution”. But it has not struck down Section 377 in its entirety. To that extent, the court has drawn a clear distinction between “consensual sexual acts of adults in private” and forced sex by way of rape and paedophilia. This may serve as a party pooper for those who mistakenly believe that absolute sanction has been accorded for their unnatural desires and appetite for perversity. Hopefully, prosecution of gay rapists and paedophiles will not be cited as ‘harassment’ of the lesbian, gay, bisexual and transgender community. It is also to be hoped that law enforcement agencies will be adequately and appropriately briefed by authority about Thursday’s judgement — unless it is set aside on appeal in the Supreme Court — lest they confuse the ruling as Section 377 being struck down from the statute book. That would truly endanger the rights of victims of perversity.
Having said that, it would be in order to stress two points. Perhaps the judiciary could have left the task of interpreting Section 377 to accommodate the abhorrent sexual proclivities of a minuscule minority to the executive and the legislature. After all, the social implications of such sweeping change go beyond the strait and the narrow of constitutional egalitarianism which sounds fine on paper and in treacly media commentary, but is bound to clash with established norms of society. This is not to justify either religious orthodoxy or regressive social practices, but to underscore the Indian reality which is far removed from the perception of those cheering Thursday’s judgement. Not everybody looks at sexual deviancy through the prism of an individual’s right to libertarianism. Second, there is absolutely no reason why any debate over Section 377 should be reduced to the claimed persecution of gays. The real issue is of privacy of adults and whether the state has the right to intrude into the private lives of its citizens. The Delhi High Court has not entirely ignored this aspect as its ruling is equally applicable to adult heterosexual couples. But the advocates of a queer version of liberalism have deftly converted Thursday’s judicial pronouncement into a personal victory. This is why the executive and the legislature must intervene before it is too late and regain the initiative on a subject that touches the core of our society, culture and identity.
