[Section 377 Verdict] No Presumption Of Constitutionality Attached To A Pre-constitutional Statute Like Indian Penal Code: Justice Nariman

Justice Rohinton Fali Nariman, in his concurring opinion, has observed that there is no presumption of constitutionality attaches to a pre-constitutional statute like Indian Penal Code.Justice Nariman made this observations while he was addressing the question whether the two Judge judgment in Suresh Kumar Koushal is right or not.He observed as follows;"Suresh Kumar Koushal’s judgment first begins with the presumption of constitutionality attaching to pre- 89 constitutional laws, such as the Indian Penal Code. The judgment goes on to state that pre-constitutional laws, which have been adopted by Parliament and used with or without amendment, being manifestations of the will of the people of India through Parliament, are presumed to be constitutional. We are afraid that we cannot agree".Article 372 of the Constitution of India continues laws in force in the territory of India immediately before the commencement of the Constitution. That the Indian Penal Code is a law in force in the territory of India immediately before the commencement of this Constitution is beyond cavil. Under Article 372(2), the President may, by order, make such adaptations and modifications of an existing law as may be necessary or expedient to bring such law in accord with the provisions of the Constitution. The fact that the President has not made any adaptation or modification as mentioned in Article 372(2) does not take the matter very much further"According to Justice Nariman the presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so."Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code"."It is a little difficult to subscribe to the view of the Division Bench that the presumption of constitutionality of Section 377 would therefore attach", he said.Other Observations And Conclusions by Justice RF NarimanLGBT persons are entitled to be treated in society as human beings without any stigma being attached to any of them. Persons who are homosexual have a fundamental right to live with dignity, which, in the larger framework of the Preamble of India, will assure the cardinal constitutional value of fraternity. Such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional. Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programs to 96 reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.Below are some observations made by the judge: The definition of mental illness in the 2017 Parliamentary statute makes it clear that homosexuality is not considered to be a mental illness. This is a major advance in our law which has been recognized by the Parliament itself. Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, the Section must be held to be a provision which is capricious and irrational. Also, roping in such persons with sentences going upto life imprisonment is clearly excessive and disproportionate. Morality and criminality are not co-extensive—sin is not punishable on earth by Courts set up by the State but elsewhere; crime alone is punishable on earth. To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults. The rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with—as Justice Holmes said in the lines quoted above in this judgment—a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared. Given our judgment in Puttaswamy (supra), in particular, the right of every citizen of India to live with dignity ...

[Section 377 Verdict] No Presumption Of Constitutionality Attached To A Pre-constitutional Statute Like Indian Penal Code: Justice Nariman

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[Section 377 Verdict] No Presumption Of Constitutionality Attached To A Pre-constitutional Statute Like Indian Penal Code: Justice Nariman

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