The News papers and their headlines may scream that Section 377 of the Indian Penal Code has been made null and void to the extent that PRIVATE CONSENSUAL SAME SEX activity cannot be brought under the ambit of the section of the Penal code. But a plain reading of Article 226 of the Constitution of India clearly defines the precedential value of the judgement pronounced by The High Court of Delhi would hold good only so far as the jurisdiction to which the power has been granted by the constitution, which means Delhi. The relevant provision reads as under:-
Article 226. (1) Notwithstanding anything in article 32
every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions,ordersor writs, including 1[writs in the nature of habeascorpus, mandamus, prohibition, quo warranto and certiorari,or any of them, for the enforcement of any of the rightsconferred by Part III and for any other purpose.]
Primarily, Delhi is cosmopolitan; secondly the income and education quotient of the Delhiites is far above the national average; thirdly the denizens of Delhi are not bound by the traditions that hold fast the rural society of India. Therefore, unless the Supreme Court of India backs this judgement with its own order (on an appeal on this matter or on a similar subject), it is difficult to consider this judgement as the LAW DECLARED of THE LAND.
The justices have been unkind to the ASG, by bringing in a personal reference against him by stating that his understanding of the constitutional scheme of things was POOR! What actually the ASG thought on the issue is irrelevant, secondly he was ranged against the public opinion of the celebrities and various social oraganizations and could not have argued with any conviction.Further it was a SOCIAL issue having HEALTH, LAW & ORDER ramifications.
I am of the firm opinion that Justices of the other High Courts cannot be as bold as these Justices, as they may be dispensing justice in territories that have high religion based opinions and prejudices.
In the interest of the NATION, either the Parliament should amend the provisions of Sec 377 and add a proviso that THE SEXUAL ACTIVITY OF ANY KIND BETWEEN CONSENTING ADULTS CANNOT BE BROUGHT WITHIN THE AMBIT OF THIS SECTION. Otherwise this will continue in the statute books like section 303 of the IPC, but defunct in practice, as the judicial precedent has struck down the section as DISCRIMINATORY, albeit by the Supreme Court.
LET US BE TOLERANT, BUT NOT ENCOURAGE LICENTIOUSNESS!!