Feminist Law Prof Ruthann Robson (CUNY) posted here at Constitutional Law Profs on the declaration by the Dehli High Court that India’s criminal prohibition on sodomy is unconstitutional. Here is an excerpt of her post:
The Court also quoted Justice Michael Kirby‘s recent speech, Homosexual Law Reform: An Ongoing Blind Spot of the Commonwealth of Nations, for rationales supporting the conclusion that the anti-sodomy laws derived from the imperial rules of the British crown are “wrong.” (paragraph 85).
In terms of judicial power, the Court stressed that in a democratic society it is the role of the judiciary to protect fundamental rights (paragraph 125), but noted that Parliament could choose to amend the law to be consistent with the recommendation of the Law Commission (and presumably the Court’s Judgment) (paragraph 132). The Court clarified that the judgment was not retroactive.
Robson’s comments illuminate the anti-colonial aspects of the ruling and its simultaneous reliance fundamental rights. The full post along with the case are worth a read.