Delhi HC and Sec 377

02 Jul

So, someone has seen sense in this great nation of ours! Read the entire judgement here.

The judgement is beautifully written. I’ll quote the parts that I think have far-reaching implications here:

Pg 26:
Dignity as observed by L’Heureux-Dube, J is a difficult concept to capture in precise terms [Egan v. Canada,
(1995) 29 CRR (2nd) 79 at 106]. 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.

Pg 61:
enforcement of public morality does not amount to a “compelling state interest” to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others.

Pg 62:
Further, Justice O’Connor while concurring in the majority judgment added that:
“Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.”[page 582]

Pg 64:
Thus 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.

Pg 86:
At the outset, the Court observed that the Act in question is a preconstitutional legislation and although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. There is thus no presumption of constitutionality of a colonial legislation. Therefore, though the statute could have been held to be a valid piece of legislation keeping in view the societal condition of those times, but with the changes occurring therein both in the domestic as also international arena, such a law can also be declared invalid.

Pg 96:
Respect for human rights requires that certain basic rights of individuals should not be capable in any circumstances of being overridden by the majority, even if they think that the public interest so requires. Other rights should be capable of being overridden only in very restricted circumstances. These are rights which belong to individuals simply by virtue of their humanity, independently of any utilitarian calculation.

Pg 100:
The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognizes the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights.

Pg 104:
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.

Read the whole thing. It’s fabulous. And mark my words, this is a landmark judgement!

1 Comment

Posted by on July 2, 2009 in Life, Quotes, Thoughts


One response to “Delhi HC and Sec 377

  1. Ravi

    July 7, 2009 at 8:31 pm

    its good to see so many blog posts in support of the gay people in india!
    Recently a tee startup Inkfruit, released a support the gay tee..
    I think this voice the government will have to hear.


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