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Name Aditya Dokania

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)

reduced to ten years imprisonment, but its introduction in the subcontinent


a year later served to institutionalize what was in pre-colonial India a minor
strand of homophobia.

The Britishers stated the story of Sodom as depicted in Genesis 19 as a


ground of teaching people that homosexuality is unnatural The language of
against the order of nature in section 377 provides little indication that it is
directed towards particular sexual subjects. The commentary attached to
section 377 indicates that the law is meant to punish sodomy, buggery and
bestiality; in other words, targeting sexual practices rather than sexual
subjects

who

come

to

embody

sociallyconstituted perversities in the form of homosexual.


Increasingly the state became sites of giving new ideas and truths about
sexuality.3
The question which the Indian Judiciary has been trying to deal with since
1860 is to determine what exactly constitutes carnal intercourse against the
order of nature. The meaning of section 377 in 1884 was restricted to anal
sex, by 1935 it was broadened to include oral sex and the judgments in
contemporary India have broadened it to include Intercrural sex. The lack of
a consent based distinction in the offence has made homosexual sex
synonymous to rape and equated homosexuality with sexual perversity. If we
are to search for a principle which holds together all these sexual acts can be
found as early as in 1935. In the Khanu vs Emperor 4 case, the court laid
down that the natural object of sexual intercourse is the conception of

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

human beings which in the case of coitus per os (oral intercourse) is


impossible5
The criminalization of homosexuality, by condemning into perpetuity an
entire

class

of people

forces them

to live their

lives

in a

shadow of

harassment, humiliation, and degrading treatment at the hands of the law


enforcement machinery, further denying them the right to a full moral
citizenship.
In a milestone judgment6 conveyed on July 2, 2009, the Delhi High Court
decided that Section 377 of the Indian Penal Code, 1860 disregarded various
fundamental rights, including the right to privacy and right to dignity under
the fundamental right to life and liberty (Article 21), the right to equality
(Article 14), and forbiddance of separation on grounds of sex (Article 15). The
said decision was appealed against in the Supreme Court of India in
the Suresh Kumar Koushal and another v NAZ Foundation and Others 7 case
and it was held that the Delhi High Court was wrong in its findings and was
also wrong in reading down the section to allow consensual homosexual
activities between two adults of the same sex.
The section 377 of IPC was challenged on a number of grounds, mostly on
the basis of the violation of the fundamental human rights. The ABVA filed
the petition against 377 on the ground that it violated Articles 14-15(right
to protection against discrimination), Article 19(right to freedom of speech
and expression)

and

Article

21(the

right

to

life

and

liberty

which

encompasses the right to privacy) of the Constitution of India. Sexual


relations are among the most private aspects of a persons life and selfhood,
which, according to the PIL, this law continually jeopardizes even when no
5 Supra note 2
6 2010 CriLJ 94
7 CIVIL APPEAL 10972 OF 2013

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

(speech and conscience) are not limited by public interest concerns.


Constitutionally, therefore, there is no warrant for the Supreme Court to
interfere with the judgment of the Delhi High Court; a contrary opinion would
imply that our Constitution is committed to the non-discrimination and
respect principles (as discussed above) but in an entirely insupportable,
capricious, arbitrary and unprincipled fashion, withholds that commitment
from homosexuals. That certainly cannot be the Constitution we live under,
or the Constitution to which we owe our allegiance.16
However, the decisions taken in hard cases that have been so extensively
discussed bring us to a question yet unanswered. How far are the decisions
of hard cases binding, and can such decisions, based purely on the whims
and understanding of the judge who might have not understood the pith and
substance of the case and have not applied his mind over the matter
properly be accepted without question?

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

According to Dworkin, legal positivism holds that law is a duty-based


system of rules, and it recognizes only those personal rights established by
authoritative political institutions. He considers Herbert Harts Concept of
Law as the best example of this perspective. Dworkin understands
utilitarianism as primarily a goal-based system in which individual rights
are considered subordinate to maximizing the aggregate happiness of the
majority.20
In his refutation of legal positivism, Dworkin argues that a legal system
consists of both specific rules and general principles. This distinction
between rules and principles is especially relevant to the Anglo-American

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

tradition of common law, in which judges interpret laws according to judicial


precedents.21
In illustrating the distinction, Dworkin endorses the reasoning used in the
New York case of Riggs v. Palmer22, where the named heir in a will had
murdered his grandfather in order to obtain his inheritance. Although the
applicable statute (a rule) had provided that a valid testament would
determine the terms of the inheritance, the court decided to overrule the
statute with the common law principle that a person should not be permitted
to profit from his own crime. Dworkin argues that such general principles of
equity are grounded in the states interest in seeking justice and protecting
individual rights. Such principles, moreover, should serve as trumps
whenever they conflict with other legal considerations.23
In complex legal systems, such as those in the United States and Great
Britain, Dworkin insists that no ultimate distinction can be made between
legal and moral standards. Lawyers and judges should not only look to the
black-letter rules that appear in statutes but also have some discretion to
take into account moral principles. He does not suggest that judges should
create new principles without preexisting materials, but he does believe that
they can discover relevant principles within existing laws and prior cases.
Although judges should not act as Platonic philosopher-kings with unlimited
discretion to invent new laws, they should be encouraged to interpret and
reorganize legal precedents in order to make the laws more just.24
Dworkin does recognize that legislatures and ordinary citizens have a
legitimate part in the making of law, but his emphasis is always on how
21 id
22 115 N.Y. 506 (1889)
23 Supra note 16
24 Supra note 15

judges should make their decisions. He posits an ideal judge, named


Hercules, in order to illustrate his proposed method of adjudication. Hercules,
like any judge, would decide when a legal dispute is clearly covered by
established law. If faced with a hard case, however, Hercules would
consider

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

Constitution and the adherence to Constitutional Morality and Judicial Values


is inalienable in accomplishing it. Let heaven falls, but justice shall triumph!
In the presence of a Constitution embodying every human aspect for
safeguarding the morality of individual and ensuring judicial values, if things
go wrong under the Constitution the reason will not be that we had a bad
Constitution. What we will have to say is that Man is vile!27

Bibliography
http://www.legalserviceindia.com/article/l186-Constitutional-MoralityAnd-Judicial-Values.html (visited on 15/04/2016)

27 Dhananjay Keer, Dr B R Ambedkar: Life and Mission, Popular Prakashan 1995

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