Independency Of Judiciary

INTRODUCTION:

The question was been asked by the framers of our Indian constitution that what would be the status of your judicial System would be and this was the answer given Dr. B.R. Ambedkar in the following words:

“There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects can be secured“(1)

Then the question comes into our mind that what made the framers of our constitution to make the judicial system independent and make it self sufficient in itself. The answer to this question lies in the very basic understanding that so as to secure the stability and prosperity of the society, the framers at that time understood that such a society could be created only by guaranteeing the fundamental rights and the independence of the judiciary to guard and enforce those fundamental rights. Also in a country like India, the independence of the judiciary is of utmost importance in upholding the pillars of the democratic system hence ensuring a free society. It is so because it is a known fact that the independence of judiciary is the basic requirement for ensuring that there is a free and fair society under the rule of law. Rule of Law that is responsible for good governance of the country can be done through unbiased judiciary.

The doctrine of Separation of Powers which was brought together to have a check or make boundaries for the functioning of all the three organs of the country i.e.: Executive, Legislature and the Judiciary. It provides the judiciary to act as a guardian for the protection of law and it also act as body that checks that Legislature and Executive are working within their limits and they are not interfering in the functioning of each other and the task given to the judiciary to supervise the doctrine of separation of powers cannot be carried on in true spirit if the judiciary is not independent in itself. An independent judiciary supports the base of doctrine of separation of powers to a large extent.

It is easy to talk about the independence of the judiciary as the provisions are been provided in our constitution but these provisions introduced by the framers of our constitution can only be initiated towards making of the judiciary independent. The huge task lies in creating a free environment for the proper functioning of the judiciary in which all the other organs function in a harmonies way such that the independence of the judiciary can be achieved in the real sense. The independence of the judiciary has also to be guarded against the changing economic, political and social scenario.

In the words of Churchill: “Our aim is not to make our judges wealthy men, but to satisfy their needs and to maintain a modest and a dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge.”

MEANING – THE INDEPENDENCE OF THE JUDICIARY

The meaning of the independence of the judiciary is still not completely clear after many years of its existence. Our constitution by the way of the Articles just talks about the independence of judiciary but it is no where defined what actually is meant by independence of judiciary.

The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which holds its existence from several years. The doctrine of separation of powers talks of the independence of the judiciary as an institution from the executive and the legislature.

The other meaning of judicial independence can be hatched out by looking at the writings of the scholars who have done research in this field. Scholars have followed the “constituent mechanism” (i.e. what constitutes the judiciary) to define the independence of the judiciary. Scholars tried to define judiciary by propounding the independence of the judges which constitutes judiciary. Therefore the independence of the judiciary is the independence of the exercise of the functions by the judges in an unbiased manner i.e. free from any external factor.

So the meaning of independence of the judiciary can be understood as the independence of the institution of the judiciary and also the independence of the judges which forms the part of the judiciary.

Some scholars in their work tried to explain the words “Independence” and “Judiciary” separately, and said that the judiciary is “the organ of the government not forming a part of the executive or the legislative, which is not subject to personal, substantive and collective control, and which performs the primary function of adjudication”.

The final outcome them can be derived is that the independence of the judiciary as an institution and the independence of the individual judges both have to go hand in hand as the independence of the judiciary as an institution is not possible without the independence of the individual judges and is the institution of the judiciary is not independent, there is no question of the independence of the individual judges.

OBJECTIVE OF HAVING INDEPENDENT JUDICIARY :

Independence of Judiciary is sine guenon of democracy. In a democratic polity, thesupreme power of state is shared among the three principle organs constitutionalfunctionaries namely the constitutional task assigned to the Judiciary is no way less thanthat of other functionaries legislature and executive. Indeed it is the role of the Judiciaryto carry out the constitutional message and it is its responsibility to keep a vigilant watchover the functioning of democracy in accordance with the dictates, directives, andimperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of constitution. So the Judiciary has to act asthe sentinel sine qua vive . Our Constitution does not strictly adhered to the doctrine ofseparation of powers but it does provide for distribution of power to ensure that oneorgan of the govt. does not trench on the constitutional powers of other organs. Thedistribution of powers concept assumes the existence of judicial system free fromexternal as well as internal presses. Under our constitution the Judiciary has been assignedthe onerous task of safeguarding the fundamental rights of our citizens and upholding theRule of Law. Since the courts are entrusted the duty to uphold the constitution and thelaws, it very often comes in conflict with the state when it dries to enforce orders byexacting obedience. Therefore, the need for an independent t and impartial Judiciarymanned by persons of sterling quality and character, underling courage and determinationand resolution impartiality and independence who would dispose justice without fear, ill will or affection. Justice without fear or fervor, ill will or affection, is the cordial creed of our constitution and a solemn assurance of every Judge to the people ofthis great country.

Secondly, the Judiciary, which is a repartee but equal branch of the state, to transform thestatus quo into a new human order in which justice, social, economic and political willinform all institutions of national life and there will be quality of status and opportunityfor all. The Judiciary has therefore a socio- economic distinction and creative function. The Judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a pro-active goal oriented approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the constitution and are imbued with constitutional values.

NEED FOR THE INDEPENDENCE OF THE JUDICIARY

The basic need for the independence of the judiciary rests upon the following points:

To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that all the organs of the state function within their respective areas and according to the provisions of the constitution. Judiciary acts as a guardian of the constitution and also aids in securing the doctrine of separation of powers.

Interpreting the provisions of the constitution: It was well known to the framers of the constitution that in future the ambiguity will arise with the provisions of the constitution so they ensured that the judiciary must be independent and self-competent to interpret the provision of the constitution in such a way to clear the ambiguity but such an interpretation must be unbiased i.e. free from any pressure from any organs like executive. If the judiciary is not independent, the other organs may pressurize the judiciary to interpret the provision of the constitution according to them. Judiciary is given the job to interpret the constitution according to the constitutional philosophy and the constitutional norms.

Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial justice and not partial or committed justice. By committed justice we mean to say that when a judge emphasizes on a particular aspect while giving justice and not considering all the aspects involved in a particular situation. Similarly judiciary must act in an unbiased manner.

CONSTITUTIONAL PROVISIONS Which Provide Judicial Independency

Many provisions are provided in our constitution to ensure the independence of the judiciary. The constitutional provisions are discussed below:

Appointment of the Judges

The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president after consulting with the judges of the Supreme Court and the high courts. Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete discretionary powers in the appointment of the judges.

Until 1973, the senior most judge of the Supreme Court was appointed as the Chief Justice. However, this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word “consult” does not mean that the president is bound by the advice. He is free to make his own decision.

In 1977, in the case of Union of India vs Sankalchand Seth , which was related to the transfer of a Judge from one high court to another under art 222, SC held that the President has the right to differ from the advice provided by the consultants.

Judges Transfer Case 1

In the case of S P Gupta vs Union of India SC unanimously agreed with the meaning of the word ‘consultation’ as determined in the Sankalchand’s case. It further held that the only ground on which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In doing so, it substantially reduced its own power in appointing the judges and gave control to the executive.

Judges Transfer Case 2

this matter was raised again in the case of SC Advocates on Record Association vs Union of India . In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high courts and Supreme Court, the CJ should have the primacy and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made only if there is a consensus among them.

Judges Transfer Case 3

A controversies arose again when the CJ recommended the names for appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9 member bench held that an advice given by the CJ without proper consultation with other judges is not binding on the govt.

As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and High Courts are fairly free from executive control. This is an important factor that ensures the independence of the judiciary.

Security of Tenure:The judges of the Supreme Court and High Courts have been given the security of the tenure. Once appointed, they continue to remain in office till they reach the age of retirement which is 65 years in the case of judges of Supreme Court Art. 124(2)

124. Establishment and constitution of Supreme Court.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

In the case of High Courts judges the age is 62 as per Art. 217(1)

217. Appointment and conditions of the office of a Judge of a High Court.

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years

They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity. A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house present and voting. Procedure is so complicated that there has been no case of the removal of a Judge of Supreme Court or High Court under this provision.

Salaries and Allowances: The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allowances are fixed and are not subject to a vote of the legislature. They are charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated Fund of state in the case of High Court judges. Their emoluments cannot be altered to their disadvantage (Art. 125(2))

125. Salaries, etc., of Judges

(1) There shall be paid to the Judges of the Supreme Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.

(2) Every Judge shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such privileges, allowances and rights as are specified in the Second Schedule:

Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may confer the supplementary powers on the Supreme Court to enable it work more effectively. It may confer power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away.

Jurisdiction

The jurisdiction and powers of the Supreme Court are quite wide. The Supreme Court has a threefold jurisdiction.

Original Jurisdiction

The Supreme Court has originally jurisdiction i.e. cases which can originate with the Supreme Court alone over disputes between (a) the Government of India and one or more states (b) the Government of India and any stat and states on one side and one or more state on the other (c) two or more states. No other court in India shall have the power to entertain any such suit. Thus the Supreme Court is a Federal Court.

However this jurisdiction does not extend to disputes arising out of treaty or agreement which is an operation and excludes such jurisdiction. The Supreme Court’s may also be excluded in some other matter, inter-state disputes, matters referred to the Finance Commission, adjustment or certain expenses as between the Union and the States. Furthermore, ordinary commercial matters do not fall in this category. Most scholars include in the original jurisdiction the power of the Supreme Court to decide disputes regarding Fundamental Rights. It is original in the sense that the aggrieved party has the right to directly move the Supreme Court by pressing a petition. However some constitutional experts opine that the writ jurisdiction of the Supreme Court should be treated separately as the dispute in such cases is not between the units of the Union but an aggrieved individual and the Government.

Appellate Jurisdiction

The Supreme Court is the highest Court appeal from all courts in India. It hears appeals in (i) cases involving interpretation of the constitution- civil, Criminal or otherwise (Article 132) (ii) Civil cases irrespective of any constitutional issue (Article. 133) (iii) Criminal matters irrespective of any constitutional issue (134). Besides the Supreme Court may grant special leave to appeal in certain cases under article136.

In constitutional matters an appeal can be made if the High Court certifies that the cases involves a substantial question of law or general importance or that in its opinion the question needs to be decided by the Supreme Court.

In criminal cases an appeal lays the Supreme Court if the High Court certifies that the case is fit for appeal. But an appeal can be made without the certificate of a High Court if the High Court has in an appeal reversed an order of acquittal of the accused and sentenced him to death or where the High Court has withdrawn a case from the lower court, conducted the trail itself and awarded the accused the death sentence and more than 10 years imprisonment.

The right of the Supreme Court to entertain appeal by Special leave in any cause or matter determined by any court or tribunal is unlimited. The exercise of the power is left entirely to the discretion of the Supreme Court. However the power is clearly to be exercised only under exceptional circumstances where substantial question of law or general public interest is involved, where grave injustice has been done or where a tribunal has exceeded its jurisdiction or has run counter to nature justice.

Advisory Jurisdiction

The Supreme Court renders advice on any question of law or fact of public importance as may be referred to it for consideration by the President. These are no litigation involved and the opinion given by the Supreme Court is not to be considered as a judgment. The advice is not binding on the President who may or not accept it. The main use of this provision is to enable the Government to get an authoritative opinion as to the legal validity of a matter before action is taken upon it. The court however is bound to give its opinions on matters relating to disputes arising out of a treaty or agreement entered into before the commencement of the constitution.

Other powers

Article 129 declares the Supreme Court as a court of record thus its proceedings are recorded for perpetual verification and testimony its records are admitted in evidence and cannot be questioned in any court of law and it has the power to punish by fine and imprisonment any person guilty of contempt or its authority.

ii) The decision of the Supreme Court is binding on all courts within the territory of India. However the Supreme Court is not bound by its earlier decision it can come to a different decision if it is convinced that it had made an error or harmed public interest.

iii) The Supreme Court can make rules regarding the practice and procedure of the court with the approval of the President.

iv) The Supreme Court can appoint its officers and servants in consultation with the UPSC and determine their conditions of service in consultation with the President. The Supreme Court can recommend to the President the removal of the Chairman and members of the UPSC. Under Article 139-A the Supreme Court may transfer to itself cases from one and more High Courts it these involve question of law or of great significance. The Supreme Court may transfer cases from one High Court to another in the interests of Justice.

No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provide that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art. 121 which lay down that no discussion shall take place in Parliament with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge.

Power to punish for contempt: Both the Supreme Court and the High Court have the power to punish any person for their contempt. Art. 129 provides that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have the power to punish for contempt of itself.

Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive Principles of State Policy and lays down that the state shall take steps to separate the judiciary from the executive in the public services of the state. The object behind the Directive Principle is to secure the independence of the judiciary from the executive. Art.50 says that there shall be a separate judicial service free from executive control.

Art 124(7) Prohibition on practicing before any court:

Art 124 prohibits a retired judge of a SC or a High Court from appearing and pleading before any court or tribunal.

CONCLUSION:

I conclude my project on saying that according to me Independence of judiciary is important for the purpose of fair justice. There should be no interference by the legislature or the executive, in the proceedings of the judiciary so that it may take a judgment that seems reasonably fair. In case of intervention, there may be an element of bias on the part of the judges in taking a fair decision. It is difficult to suggest any other way to make the Indian courts more self reliant and keep them away from the influence of the other two organs.

But I would like to support my project by saying that it has a independent status in our country as per the following points:

1) In the time when India got independence and the Supreme Court has given many judgment against the government of the time from 1950 to the late 1980 and most of them were regarded as an landmark judgment in our judicial system and it is till date regarded as the base of Indian Judicial System.

According to Land reform (early confrontation)

After some of the courts overturned state laws redistributing land from zamindar (landlord) estates on the grounds that the laws violated the zamindar’ fundamental rights, the Parliament of India passed the First Amendment to the Constitution in 1951 followed by the Fourth Amendment in 1955 to protect its authority to implement land redistribution. The Supreme Court countered these amendments in 1967 when it ruled in Golaknath v. State of Punjab that Parliament did not have the power to abrogate fundamental rights, including the provisions on private property.

Other laws deemed unconstitutional

On 1 February 1970, the Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by Parliament in August 1969.

The Supreme Court also rejected as unconstitutional a presidential order of 7 September 1970 that abolished the titles, privileges, and privy purses of the former rulers of India’s old princely states.

The Court ruled that the basic structure of the constitution cannot be altered for convenience. On 24 April 1973, the Supreme Court responded to the parliamentary offensive by ruling in KeshavanandaBharti v. The State of Kerala that although these amendments were constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution’s “basic structure”, a decision piloted through by Chief Justice Sikri.

Emergency and Government of India: The independence of judiciary was severely curtailed on account of powerful central government ruled by Indian National Congress. This was during the Indian Emergency (1975-1977) of Indira Gandhi. The constitutional rights of imprisoned persons were restricted under Preventive detention laws passed by the parliament. In the case of Shiva Kant Shukla Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, a bench of five seniormost judges of Supreme Court ruled in favour of state’s right for unrestricted powers of detention during emergency. During the emergency period, the government also passed the 39th amendment, which sought to limit judicial review for the election of the Prime Minister; only a body constituted by Parliament could review this election. The court tamely agreed with this curtailment (1975), despite the earlier Keshavananda decision. Subsequently, the parliament, with most opposition members in jail during the emergency, passed the 42nd Amendment which prevented any court from reviewing any amendment to the constitution with the exception of procedural issues concerning ratification. A few years after the emergency, however, the Supreme Court rejected theabsoluteness of the 42nd amendment and reaffirmed its power of judicial review in the case of Minerva Mills Ltd. & Ors. Etc. Etc vs Union of India & Ors .From the above cases and the points dealt in them it has shown that how hard it was for the judiciary to maintain its independent status and how much the parliament tries to take away the powers of the Supreme Court especially at the time of Indira Gandhi when she was the Prime Minister. The above mentioned are my view.But in the current time there is a debate going on whether in India is Judiciary really independent in nature because many of them say it is partly independent the people who differ from the Independency of judiciary say that on the base that is appointment of the judges and in the later part that the parliament has the power to appoint the retired Judge of SC in any position as a chairman or head of a commission this way the judge may have influence on giving the judgment.

BIBLIOGRAPHY:

WEBSITES:

1) http://hanumant.com/Judiciary.html

2) http://mulnivasiorganiser.bamcef.org/?p=482

3) http://en.wikipedia.org/wiki/Supreme_Court_of_India#cite_ref-6

4) http://www.publishyourarticles.org/knowledge-hub/political-science/what-are-the-powers-of-supreme-court-of-india.html

5) http://indiankanoon.org/doc/120358/

6) http://indiankanoon.org/doc/257876/

7) http://indiankanoon.org/doc/1735815/

 

 

LGBT rights interpreted by Judiciary “Lesbian, Gay, Bisexual, and Transgender”

How Indian Judiciary is interpreted the social stigma in regards to LGBT rights?

 

Introduction:

It would be problematic to fix a gigantic moment of change from invisibility to visibility in the context of queer citizenship in India. From last few years it could be follow in film industry when the producer introduced new social behavior in the movie like Fire[1]. It argued that the Fire performed an important turn in public perceptions of queer visibility. On the other hand, another movie called “My Brother Nikhil”, the protagonist, Nikhil, is a homosexual man suffering from HIV/AIDS[2] He is detained by the government under the Goa Public Health Act, 1985, which empowers the State government to isolate persons living with HIV/AIDS by confining them in wards and institutions for extended periods.

 

After few years of Fire controversy, a less sensational, but equally epistemic event informed the burgeoning LGBT activism in India. In December 2002, NAZ[3] involved with activism and HIV awareness among the gay and MSM[4] community, filed a Public Interest Litigation in the Delhi High Court in an attempt to read down[5] Section 377’s criminalization of private consensual sexual acts that went “against the order of nature.” Passed in 1861 while India was still under British rule, the law criminalizes any sexual activity that goes “against the order of nature.”

 

The SLP has field against Delhi High Court’s Judgment[6] before Supreme Court by the petitioner who raised the limited question of whether the High Court could dismiss the petition on the grounds that there was no cause of action. The court, while issuing notice to the Central government for representation and said that the petition did not deal with an academic question and that this was a public interest issue that was being debated all over the world. The Judges observed that the High Court could refuse to entertain such an issue only on the grounds that it was merely academic and that there was no personal injury to any party.

 

In response form the Government, the Ministry of Law and Justice had argued that Section 377 should remain because it was a tool that could be used by the government to interfere in the private sphere in “the interest of public safety and the protection of health and morals”[7]. The government claimed that Section 377 was used in cases of assault and deleting the section could2

 

“open the floodgates of delinquent behavior”[8]. The government said that Section 377 was needed to deal with cases of child sexual abuse.

 

The framers framed the sec 377 IPC in such a way that it criminalization of private consensual sexual act that went “against the order of nature”. The law specifically stated that whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

 

Basically this section is intended to punish the offense of sodomy, buggery and bestiality[9]. The offense consists in a carnal knowledge committed against the order of nature by a person with a man, or in the same unnatural manner with women or by a man or woman in any manner with an animal. Consent of the parties here is immaterial and the party consenting is equally liable as an abettor.

 

But Delhi High Court has taken into account the voluntary act when they framed their interpretation of decriminalized of sec377. They interpreted section 377 as more private concern. They brought consensual sexual acts of the adults in private who should exclude form the purview of the sec377 because it is the violation of article 21, 14 and 15 of the Indian Constitution.[10]

 

The attempt to repeal sec377 was introduced by great LGBT political activism in India in late 90’s. The conflict cultural meaning-making and legal intervention has addressed a complex considerable relationship between state and non-state centered activism in the context of sexual orientation. The rapid increase in the number of Indians who become effected by AIDS, has necessitated an approach to queer activism that draws both on an attempt to mobilize a more accountable state to its marginalized populations, but also on the activist energies within cultural and political arenas the state and the judicial process[11].

 

CONFLICT BETWEEN LEGAL ARENA AND SOCIAL PURPECTIVE:

 

Main object of this section provides general understanding to “sodomy” which denotes intercourse per anum by a man with a man or with a woman or with a child or with an animal. Therefore, sex and age is immaterial in the concern of that act. And this section is wide enough to include child and women also.

 

If we look at the case laws we can indentified that whether this section is relevant or not in concern society. In Brother John Anthony v State of Tamil Naddu[12], the petitioner, warder of a boarding house was found to have committed on the inmates of the Boarding School following unnatural offences,viz,

 

1) Inserted the penis into the mouth of the victim and did the act of in carnal intercourse leading to ejaculation of semen into the month; and

 

2) Holding the penis in the hand of the victim making the manipulated movements of penis and withdrawal up to the point of ejaculation of semen.

 

The petitioner held liable under sec 377, IPC for committing unnatural offence by the court.

 

Not only had this, in 1974, the Supreme Court of India upheld an earlier sessions court verdict acquitting two policemen who raped a 16 year old tribal girl in the compound of the Desai Ganj Police Station in Maharashtra. The decision was informed by the horrifically dubious logic that since Mathura was ‘habituated to sexual intercourse’ to begin with and since she had passively submitted to their advances, the act could not be considered as non-consensual. Therefore, eventually activist from the women’s groups to change definitions of “consent”, culminating in the criminal law Amendment Act, 1983, which insisted that the burden of prove consent must be on the accused.

 

In India and the most of the Asian countries homosexual practices with or without consent is illegal and punishable. The British drafted personal law on homosexuality under the section 377 in the Victorian era when homosexuality was consider as an aberration that needed to be rectified by the State by criminalizing all forms of sexual behavior other than penile-veginal.[13]

 

Historically it has been proved that homosexual ‘erotic ‘acts occur in all cultures and in all societies in all periods. In India there exist sufficient documentary, archaeological and anthropological evidences to suggest that same sex ties especially among men, were not only culturally, but dignified and revered by attributing similar traits to religious deities. The Kama sutra has a chapter on same sex love. The apparent acceptance of boy lovers in Mogul and lesbianism in the confines of harems are well known facts of State approval and recognition of homosexuality[14].

 

In Europe the colonial masters had two sets of morality in respect of sexual behavior. The countries with Napoleonic Code did not identify the same sex acts for criminal sanction, whether as common law did criminalize homosexuality act and carried it to India and others parts of the colonies.

 

Even same sex marriage in China, Canada and other places got approval and state sanction. A recent case from Kerala, where the judicial Magistrate has allowed two young nurses to live “together for ever”[15] and they have decided to solemnize their relationship in marriage soon in an example of judicial approval of same sex relationship.

 

However, in twentieth century due to recognition of rights to life and liberty, as a basic human right, interference of law in private life of an individual is consider as invasion on an individual’s private life and bedroom. Perhaps it is to safeguard the individual’s right to privacy that England decriminalized homosexuality acts on private between consenting parties in 1967. Canada and Australia followed England. In the United State it is considered in appropriate to regard homosexuality relations as blameworthy for assigning criminal sanction and the US constitution does not require the state to do so.[16]

 

There is the rapid changing jurisprudence and other law related practice that identities a significant application of Human rights law with regard to people of diverse sexual orientations and gender identities. This development can be seen at the international level, especially in the form of practice related to the United Nations Human Rights treaties as well as Europeans convention of Human Rights. The sexual orientation and gender identity related human right legal doctrine can be categorized as follows:

 

a) Non discrimination

 

b) Protection of private rights and

 

c) The ensuring of special general human rights protection to all, regardless of sexual orientation or gender identity.[17]

 

On March 26th, 2007, the scholars of human Rights have invented a new principal, known as Yogyakarta Principles[18]. It applies of human rights in relation to sexual orientation and gender identity. The objective of this principle is that comprehensive identification of obligation of sate to respect, protect and fulfill the human right of all persons regardless of their sexual orientation or gender identity. It has define sexual orientation in the way that it refers to each person’s capacity for profound emotional, affection and sexual attrition to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.[19]

 

In the view of recognition or right to freedom as a fundamental human right, it is considered world over that criminalization of homosexuality acts is a clear violation of right to privacy. Naz Foundation has challenged specially for in two grounds:

 

1) Section 377 of IPC was violation of Article 14,15 and 19(1)(a-d) and 21 of constitution to the extent it penalizes sexual acts between consenting adults and that

 

2) There exist no compelling State interest to justify the curtailment of such an important element in the fundamental right to life and liberty.

 

Consenting the validity of section 377, Naz stated “it creates an arbitrary and unreasonable classification between natural (penile-vaginal) and unnatural (penile-non-vaginal) sexual acts which is violated of right protection before and under the law provided in Article 14”.

 

Social-scientific evidence has been also suggested that the prohibition acts are indeed not unnatural. Sec 377 is a discriminatory legislation because it criminalizes the pre-dominantly homosexual acts and imposes traditional gender stereotypes of natural sexual roles for men and women upon the sexual minority.

 

Interpretation:

 

The judgment has very limited placed which covered by the legal history of section 377. However, that is an incomplete for the judgment omits a critical paragraph in the writ petition which has been presented by Naz foundation. This paragraph basically explained how the introduction of sec377 “was contrary to then existing Indian traditions, which did not treat sodomy as a crime”. It is unclear why judges prefer to ignore the paragraph borrowed from an important collection of essays on same sex attraction. Perhaps, they felt that this issue would take them down to interpreting religious and spiritual sources. It would have required the judges to accept, deny or at least comment on the petitioner’s submission that section 377 was based on “traditional Judeo-Christian moral and ethical standards.” Accepting such a submission, even if substantiated by Historical evidence, could have made the judgment appears unnecessarily divisive. 6

 

It has observed that Naz Foundation discussion on sec 377’s case-law incomplete. Although the judgment refers to several leading cases, it does not provide that whether all or any of these cases involved same-sex conduct. Instead, after discussing the underlying holdings in each case, Naz Foundation argues that the “tests” for attracting section 377 have changed from “the non procreative to imitative to sexual perversity”.

 

The court interpreted sexual orientation as being analogous to sex and thus held that discrimination on these grounds is prohibited. In order to analyze whether this can be done and is constitutionally valid it is fruitful to look at the various theories of constitutional and statutory interpretation. Every theory starts from the premise that the primary source of interpretation must be the words. If there is any ambiguity we look at external and internal aids to construction. The first theory that can be used in the analysis is the original intention theory.

 

In this it can be look at the Original intent in other words what framers intended. There are two strands of this, semantic original based on what the framers intended to say, and what they intended to do[20].Naz foundation judgment is clearly wrong as when framers spoke of article 15 for understanding of sexual orientation, if they had intended that sexual orientation should be read in to sex then article 377 would have been unconstitutional or read down at 26th January 1950 itself.It can be argued that maybe the framers specifically intended that law should not reflect changes in the original values that the framers thought desirable and that it requires the long and hard consideration needed for a constitutional amendment.

 

Sometimes it is possible for some special cases a statute may have to be historically interpreted “as if one were interpreting it the day after it was passed”. [21] Generally statute always speaking variety of law and the court is liberty to put the current application of the statute in respective of present perspective. There are two kinds of principle which covered the circumstances. The first principle is that court must apply a statute to the world as it exist today and the second principle is that the statute must be interpreted in the light of the legal system as it exist today[22]. Reference to the circumstances existing at the time of the passing of the statute does not mean that the language used, at any rate, in a modern statute, should be held to be applicable to social, political and economical developments or to scientific inventions not known at the time of the passing of the statute[23]. Therefore a statute may be interpreted to include at the time of enactment of the statute.7

 

Apparently a question can be arising as what was the intention of the law framer. Whether their intention intend as originality approach like the words of the statute be given the meaning they would have received immediately after the statute’s enactment or did they intends as dynamists may contend that it would be proper for the court to adopt the current meaning of the words? The courts have now generally supports the dynamic construction but it also has limitation. Statute can not be constructed in such a way that the original concept will be affected. [24]

 

In the case of Royal College of Nursing of the UK V Dept of Health and Social Security[25], Lord Wilberforce said: “ In interpreting an Act of Parliament it is proper and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention.”[26]

 

Lord Bridge also affirmed “When a change in social condition produces a novel situation, which was not in contemplation at the time when a statute is first enacted, there can be no a prior assumption that the enactment is wide enough to extend to those circumstances, there is no reason why it should not apply.” [27]

 

Therefore the new trend of homosexuality brings new dynamic interpretation by court in the Naz foundation judgment. . The social change in attitude towards homosexuality, two person of the same sex cohabiting and living together for a long time with mutual degree of interdependence have been apprehended as constituting a family[28]. Though they can stay together, but they shall not be qualified as a husband and wife because in Hindu Marriage Act, 1955[29] and Special Marriage Act[30], under the condition of marriage, statute has defined the age bar of bride and bridegroom. But now, the international convention of Human Rights Act, 1998 in England which introduced sexual orientation under Art 14 of European Convention on Human Rights in 2000 as an impermissible ground of discrimination. The same statute has been constructed to regard even same sex partners living together as husband and wife to avoid incompatibility with human rights.[31]

 

The present population of homosexuality in India is 25 lacks rather than one or two person which is a considerable change in social attitudes. Therefore, it is required to change the interpretation of section 377 of IPC as a decriminalization nature.

 

Conclusion:

 

The Victorian laws of sec 377 of IPC, their inherent rights are blatantly squelched down. It stands out as a deviance in the basic structure of the Indian constitution because it impairs the justice, liberty and equality of these unfriendly neighbors. Not only this, it also prevents a bundle of fundamental rights viz Articles 14, 15, 19(1) (a-d), 21 of the Constitution of India, which they as a citizen of India have lawful claim on. The biggest vice of this section is that it equates consensual sex with non consensual sex by categorizing them as the same penal offence.

 

Socio scientific evidences have also suggested that the prohibited acts are indeed not unnatural. Moreover it is to be understood that the import of the word ‘unnatural’ is dynamic and contingent to the societal sensitivity and appearance. The order of nature as purported by the section is ‘sex for procreation’. If this is the grand norm then by its strict interpretation all sex done for pleasure today should be prosecuted and penalized, abortions be prohibited and contraceptives and the like family planning measures be criminalized. The justification to retain section 377 is marinated by a religious and cultural veneer. It is also debated that the culture of homosexuality is essentially borrowed from the west. In stark contrast to this stereotype historically evidences secure that it had been practiced in all cultures at all times.

 

By strict literal interpretation, section 377 does not purport to prohibit homosexual relations; it only restricts certain sexual acts. Such acts may be practiced by heterosexuals also but homosexuals being more vulnerable fall as susceptible targets of the state and the patent victims of human rights violation. Thus, this section has matured into a potent tool of oppression employed by the venal police to further victimize these people[32].9

 

The crux of penal laws is protection of individual and society from unlawful wrongs and injustice, to ensure comfort rather than ensuing discomfort. It is not there to lay down autocratic standards for morality and immorality. The present is a multicultural society, with different inclinations and social, religious and moral affirmations. These co-exist in harmony. As a democratic state lacks authority to impose a particular religion, similarly it cannot bind the people with certain entrenched sexual norms. It cannot deprive an individual’s individuality, his own being.

 

Bibliography: 10

 

Books:

 

  • H Robinson Paul, “Criminal Law”, Aspen publishers, 1997
  • G.P Sing, “Principle of Statutory Interpretation”, Lexis Nexis Butterworth’s Wadhwa Nagpur, 12th Edition, 2010
  • Dworkin G., “ODGERS’Constrution of Deeds and Statutes”, Universal Law Publishing Co Pvt, 5th Edition, 2nd India Print, 1998
  • Binda N.S,Rao M.N and Amita Dhanda, “Interpretation of statute”,10th edition, Lexis Nexis, Butterworths,2007

 

Journal:

  • Narrain Siddharth , A battle for Sexual Right, Frontline, India’s National Magazine from the publishers of THE HINDU Volume 22 – Issue 10, May 07 – 20, 2005,
  • Joseph Jesmin, Territorial Application of High Court Decision, NUJS Law review, rev 471, July- September, 2009
  • Shahani Nishant, Sec377 and the “trouble with Statism” Legal Intervention and Queer Performativity in Contemporary India, GENDER, Issue 50, 2009
  • Rao Ashok, Should homosexuality be legalized?, Times of India,29th June,2002
  • Ramesh Babu, Court nod for lesbians in Kerala, Hindustan Times, 29th October, 2002

[1] In1997 Fire was introduced. Even while inadequately locating lesbian desire only in the context of failed heterosexuality, the film’s representation of same-sex attachments between middle-class Indian women forced queer sexual politics in India into the national imaginary in an unprecedented, and at times, violent fashion. If homosexuality was not part of “Indian” culture, as some state officials claimed, the film successfully fore grounded that homosexuality was not an import of western decadence, and in fact was quite commensurable with indigenous identity formations.

[2] Human immunodeficiency virus/Acquired Immune Deficiency Syndrome.

[3] A Delhi based NGO (Non-governmental Organization)

[4] men who have sex with men)

[5] as opposed to a complete repeal

[6] Suresh Kumar Kaushal v Naz Foundation, SLP(C) No. 15436/2009 The SLP was heard by Justices Y.K. Sabharwal and P.P. Naolekar.,

[7] Siddharth Narrain, A battle for Sexual Right, Frontline, India’s National Magazine from the publishers of THE HINDU Volume 22 – Issue 10, May 07 – 20, 2005,

[8] See supra note 7

[9] Indian Penal Code, Chap. XVI, Sec. 377, Qted. In Bhaskaran, 15)

[10] Jesmin Joseph, Territorial Application of High Court Decision,NUJS Law review, rev 471, July- September, 2009

[11] Nishant Shahani,Sec377 and the “trouble with Statism” Legal Intervention and Queer Performativity in Contemporary India, GENDER, Issue 50, 2009

[12] 1992 Cr. LJ 1352

[13] Ashok Rao, Should homosexuality be legalized?, Times of India,29th June,2002,page 6

[14]Manusmriti,Chapter 8 Verse 370

[15] Ramesh Babu,Court nod for lesbians in kerala, Hindustan Times,29th October,2002,page 13

[16] Paul H Robinson, Criminal Law,(1997) Aspen publishers, Inc, pp-766-767

[17] Para42 pag36 of Naz Foundation Judgment

[18] See Supra note 18,Para 43 page 36

[19] See Supra note 18,Para 44 page 37

[20] This can be understood using the example of school segregation. When the laws of school segregation were overturned in Brown v Board of education, a lot of people opposed this saying that the framers did not intend this. The argument being that as the body reflecting popular sovereignty only the legislature has the authority to do this.

[21] G.P Sing, “Principle of Statutory Interpretation”, Lexis Nexis Butterworth’s Wadhwa Nagpur, 12th Edition,2010

[22] See supra note15,pp250

[23] See supra note 15,pp250

[24] See supra note 15,pp-251

[25]See supra note 15, pp-251(1981)1 ALL ER 545,pp-564,565

[26] See supra note 15, pp251.

[27] See supra note 19,

[28] Fitzpatrick v Streling Housing Association Ltd,(1999)4 All ER 705(HL)

[29] Hindu Marriage Act, 1955, sec 5(iii) stated that the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage.

[30] Special Marriage Act, 1957, sec4(c) also defines the male has completed the age of twenty-one years and the female the age of eighteen years.

[31] G.P.Singh, Principle of Statutory Interpretation, 9th Edition, 2004, pp-231Ghaidan v Mendoze, (2002),4 All ER 1162(CA).

[32] As per the PUCL report 2003, it gives unbridled license to the lower executive strata for the rampant extortion of money. Such cases do not come to the limelight as homosexuals never file FIRs due to the social stigma attached to their being. They are abused sexually, verbally and detained for varying period of time which stretches from overnight to a few days imprisonment. No FIRs are filed by the police nor are any documentary evidences maintained resulting in excessive dolor void of any recourse. These people are discriminated at the workplace, abused by all and sundry or forced to marry against their will in hope of changing their cardinal self. Not to forget the younger ones who are evicted out of their own homes owing to the prejudice and social apprehensions. Since FIRs are scarcely filed, cases do not go to the court. Out of the few cases which do reach its footsteps the judiciary, owing to the delicacy of circumstances, reverts to a liberal stand