Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

governments as well as universities to act in accordance with the guidelines


formulated by the committee.
132


Article 19 ( 1 )(a) of the Constitution guarantees an FR to freedom of speech and


expression. InHarish Uppalv.Union of India,^133 the court held that lawyers have


no right to go on strike or make a call for boycott, since strikes interfere with


administration of justice. It is the duty of every lawyer who has accepted a brief to


attend trial and s/he cannot refuse to attend court because a boycott call is made


by the Bar Association. Considering the number of pending cases before various


courts and the frequency of strike calls by various associations of lawyers, this was a


positive decision, also because it encouraged lawyers to resort to other means to


raise their legitimate demands.


The last decision mentioned here is one delivered by the Delhi High Court in


Naz Foundationv.Government of NCT of Delhi.^134 Naz Foundation challenged


the constitutional validity of Section 377 of the Indian Penal Code 1860 – which


criminalises homosexual acts as ‘unnatural offences’ – on the ground that crimin-


alising consensual sexual acts between adults infringes FRs under Articles 14 , 15 , 19


and 21 of the Constitution. The high court observed that ‘inclusiveness’ in every


aspect of life is one of the underlying tenets of the Constitution, and therefore


‘Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private,


is contrary to Articles 21 , 14 and 15 of the Constitution’.
135
Rather than striking down


Section 377 as unconstitutional, the high court narrowed down its scope so as to


continue to govern non-consensual penile non-vaginal sex and penile non-vaginal


sex involving minors. An appeal against this decision is currently being heard by the


Supreme Court.


Linking constitutional developments to challenges


Since the Indian government is mandated by the Constitution to take various


initiatives to overcome the three challenges outlined above, it is logical to examine


whether constitutional developments in the last decade have responded to these


challenges. I have already alluded to how the Constitution makes extensive provi-


sions to overcome socioeconomic inequalities. Reference to Article 38 , a DP, will


make this point clearer. It provides, among other things, that the state ‘shall strive to


minimise the inequalities in income, and endeavour to eliminate inequalities in


status, facilities and opportunities, not only amongst individuals but also amongst


groups of people residing in different areas or engaged in different vocations’.
136


(^132) Ibid., para. 26. (^1332003) AIR 739 :( 2003 ) 2 SCC 45.
(^134) WP(C) No 7455 / 2001 (decided on 2 July 2009 ).
(^135) Ibid., paras. 130 and 132. For a critique of this decision, see Mahendra P. Singh, ‘Decrim-
inalisation of homosexuality and the Constitution’ ( 2009 ) 2 NUJS Law Review 361.
(^136) Art. 38 ( 2 ). See also Article 39 and other provisions in Partsiiiandivof the Constitution.


364 Deva

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