Tuesday, 31 December 2013

Contrary View On Supreme Court Ruling

When I first heard the sound bytes on the Supreme Court's decision on Section 377, the TV channels were reporting that the Hon'ble Court opined that it was not their responsibility to make laws. If homesexuality has to be be made legal, Parliament has to pass the laws.

It sounded right.

But then I read this blog post by a UK based lawyer Carl Gardner. He writes, "But India, like many of the world’s great democracies, does have judicial review in that sense; and the Delhi High Court’s judgment was an example of constitutional judicial review done well. It analysed section 377 rigorously in terms of Indian case law and the now considerable body of genuinely analogous decisions from Europe, America and the Commonwealth. Each step in the Court’s analysis was reasoned, and step by step the Court’s approach became more persuasive. At times the Court’s language turned a little grand – perhaps even became moving, according to your taste – but that’s fair enough in a landmark human rights judgment. Its ultimate conclusion is hard to argue with."

Oh well, something I learnt. Yes, Parliament makes laws. But the courts can do a judicial review of the constitution. Under that provision, the Delhi High Court's verdict of ruling Section 377 unconstitutional is correct.

Read the full, well-argued post here.

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