Constitutionalism vis-a-vis Homosexuality in INDIA

Rahul Soni
Anu Priya
This research paper analysis the societal behavior, adoption and reaction against homosexual
people in India, before talking about the other context of research let’s give a light on what is
homosexuality?
Homosexuality is romantic attraction, sexual attraction or sexual behavior between members of
the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of
emotional, romantic, and/or sexual attractions" to people of the same sex. It "also refers to a
person's sense of identity based on those attractions, related behaviors, and membership in a
community of others who share those attractions."
It also attempt to describe and explain various aspects of Homosexuality including evolution, the
reason, legal acceptance, social acceptance and the reaction towards the relations. The research
also takes the reference from the countries where homosexual ties are legalized and also throw
some light on the results of the legalizing Homosexual relations. The researcher also tried to
give focus on legal definition and its scope, lacunas, issues and challenges before homosexual
people in India.

INTRODUCTION

There are 3 main categories of sexual orientation, i.e. bisexuality, heterosexuality and
homosexuality. Bisexuality is the sexual orientation towards both the sex. While, Heterosexuality
is that sexual orientation where the attraction is towards the opposite sex. Homosexuality is
romantic attraction, sexual attraction or sexual behavior between members of the same sex or
gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic,
and/or sexual attractions" to people of the same sex. It "also refers to a person's sense of identity
based on those attractions, related behaviors, and membership in a community of others who
share those attractions."
The word homosexuals literally means as ‘of the same sex, being a hybrid of the Greek prefix
homo meaning ‘same’ and Latin root meaning ‘sex’.1 Homosexuality is a sexual orientation
characterized by sexual attraction or romantic love exclusively for people who are identified as
being of the same sex. People who are homosexual, particularly males are known as ‘gay’, gay
females are known as ‘lesbians’. That is homosexual marriages, sometimes referred to as gay
marriage, indicates a marriage between two persons of the same sex.2 Homosexuality is enduring
sexual and romantic attraction towards the same sex.
People with homosexual characteristics are same as the normal humans they don’t have any extra
organ or any other disability but they have those emotions and desires which arose towards the
same sex. The reason behind the homosexuality is not man-made. No one chose over
himself/herself for being a gay or lesbian. One of the environmental explanation towards
homosexuality is ‘fraternal birth order effect.’ Homosexuality is a natural condition and is a part
of human sexuality.

History of Homosexuality

The word ‘homosexuality’ was created by a psychologist Karoly Maria Benkert in late 19 th
century. There are a number of clarifications needed of ancient Indian texts which are relevant to
modern LGBT causes. Religion has played a role in shaping Indian customs and traditions.
While injunctions on homosexuality's morality are not explicitly mentioned in the religious texts
central to Hinduism, the largest religion in India, Hinduism has taken various positions, ranging
from homosexual characters and themes in its texts to being neutral or antagonistic towards it.
Rigveda, one of the four canonical sacred texts of Hinduism says Vikriti Evam Prakriti (Sanskrit:
ववववववव वववव ववववववव, meaning what seems unnatural is also natural), which some
scholars believe recognizes homosexual/transsexual dimensions of human life, like all forms of
universal diversities. The ancient Indian text Kamasutra written by Vātsyāyana dedicates a
complete chapter on erotic homosexual behavior. Historical literary evidence indicates that
homosexuality has been prevalent across the Indian subcontinent throughout history, and that

1
Older words for homosexuality, such as hemophilia and inversion have fallen into disuse. Less frequently used
terms are queer, homo, fag or faggot and dyke.
2
Homosexual marriages are also known as gender-neutral marriage, equal marriage, and gay marriage.
homosexuals were not necessarily considered inferior in any way until about 18th century during
British colonial rule.
The Arthashastra, an ancient Indian treatise on statecraft, mentions a wide variety of sexual
practices which, whether performed with a man or a woman, were sought to be punished with the
lowest grade of fine. While homosexual intercourse was not sanctioned, it was treated as a very
minor offence, and several kinds of heterosexual intercourse were punished more severely.3
Thus homosexuality is not a new phenomenon. Even instances of homosexuality are available in
Hindu Mythology.4 The literature drawn from Hindu, Buddhist, Muslim, and modern fiction also
testifies the presence of same-sex love in various forms. Ancient texts such as the Manu Smriti,
Arthashastra, Kamasutra, Upanishads and Puranas refer to homosexuality.5 Also there are reports
that same-sex activities are common among sannyasins, who cannot marry. Thus instances of
homosexuality are available in historical and mythological texts world over and India is not an
exception to this.
The Cultural residues of homosexuality can be seen even today in a small village Angaar in
Gujarat where amongst the Kutchi community a ritualistic transgender marriage is performed
during the time of Holi festival. This wedding which is being celebrated every year, for the past
150 years is unusual because Ishaak, the bridegroom and Ishakali the bride are both men.6
Thus the history is filled with evidences proving the existence of homosexuality in past. Whereas
in the past 10 years world over, for the lesbian and gay rights, we find that the legal initiatives
have shifted from the right to be privately sexual, that is the right to have same-sex relationships
at all, to the right to be individual civic subjects, protected from discrimination in the work place
and in the provision of services, toward the right to have relationships given status by the law.
This shift in rights-focus, from decriminalization, to civil protection, to civil recognition is, not
entirely a linear one. Thus in recent years a number of jurisdictions had relaxed or eliminated
laws curbing homosexual behavior.
According to the research conducted by the gay and lesbian vaishnava association (GALVA),
that the homosexuality was recognized as “tritiya prakriti” or the third nature during the vedic

3
Vanita & Kidwai 2001, p. 25
4
http://www.hsph.harvard.edu/Organizations/healthnet/SAsia/suchana/0909/rh374.html
5
Sandeep Roy Chowdhury, ‘The best of both worlds? South Asian bisexuals speak out,’ India Currents, February
issue, 1996.
6
Arvind Kala, Invisible Minority: the unknown world of the Indian homosexual (Dynamic Books, New Delhi,
1994).
age. Homosexuality is as old as Vedas, even the temples of khajuraho implicit the images and
scriptures of homosexual acts (954 CE). Going down the historical lane of mughal empire, in
Babur Nama it has been documented Babur’s infatuation with a teenage boy named Baburi.
The very known writer and math wizard Shakuntla Devi published a book named “The World Of
Homosexuals” in which the wrote that it is the time “we face the facts squarely in the eye and
find room for homosexual people”. This book contain various interviews with homosexual men.
Two police women from Madhya Pradesh, Leela and Urmila in 1987 married each other by
screwing the law.

Homosexuality vis-à-vis Indian Constitution

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its
citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the _[unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
The Preamble of the Constitution of India guarantees several fundamental rights to its citizens
such as Equality, Liberty, Secularism, etc. The right to Equality consists of various rights. Those
rights are as follows:
1. Equality before law (Article 14)
2. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(Article 15)
3. Equality of opportunity in matters of public employment (Article 16)
4. Abolition of untouchability (Article 17)
5. Abolition of titles (Article 18)
These fundamental freedoms ensures right to equality in the territory of India to its citizens.
Indian judiciary is going through a progressive approach by the method of judicial activism.
In country like India it is mandatory to keep the customs and morality in mind for making any
law and to declare any law valid and enforceable we need to check that the law must fulfill all
the necessary requirements given in the constitution (law of the land).
There are only few requirements which have to be fulfilled by the law for becoming the valid
law.
 It must be in support with morals.
 It must not violates the fundamental rights mentioned in Art. 14, 19 & 21.
 It must be made by the legislation.
Indian Constitution in its Article 13 states that the law which violates the fundamental rights are
to be declared as invalid law and put that law in dormant stage until any provision have been
added in saving of the fundamental rights.
This is the Indian legal system where constitution gives power to the judiciary to check the
validity of the law that every law prevailing in the country must not be arbitrarily applied on the
citizens and the fundamental rights of the citizens must not be violated. This is the doctrine of
constitutional morality which gives the constitution, judiciary a base on which Indian legal system
works.
The concept of constitutional morality is not limited to mere observance of the core principles of
the constitutionalism as the magnitude and sweep of constitutional morality is not confined to the
provision and literal text which a constitution contains, rather it embraces within itself virtue of a
wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time
adhering to the other principles of constitutionalism.
In one of the Constituent Assembly Debates, Dr. Ambedkar, explaining the concept of
constitutional morality by quoting the Greek historian, George Grote, said:-
"By constitutional morality, Grote meant... a paramount reverence for the forms of the
constitution, enforcing obedience to authority and acting under and within these forms, yet
combined with the habit of open speech, of action subject only to definite legal control, and
unrestrained censure of those very authorities as to all their public acts combined, too with a
perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the
forms of constitution wall not be less sacred in the eyes of his opponents than his own."7

7
Constituent Assembly Debates, Vol. 7 (4th November 1948)
Indian Constitution focuses on giving and securing the indefeasible rights to the citizen of our
country for bringing up the spirit of growth and development and for saving these rights, three
organs of the state work together with it to maintain the constitutional morality :-
 The Executive
 The Legislature
 The Judiciary
These all have to stay alive to the concept of constitutional morality.
In the same speech8, Dr. Ambedkar had quoted George Grote who had observed:-
"The diffusion of 'constitutional morality', not merely among the majority of any community, but
throughout the whole is the indispensable condition of a government at once free and peaceable;
since even any powerful and obstinate minority may render the working of a free institution
impracticable, without being strong enough to conquer ascendance for themselves."9
This statement of Dr. Ambedkar underscores that constitutional morality is not a natural forte for
our country for the simple reason that our country had attained freedom after a long period of
colonial rule and, therefore, constitutional morality at the time when the Constituent Assembly
was set up was an alien notion. However, the strengthening of constitutional morality in
contemporary India remains a duty of the organs of the State including the Judiciary.
The Universal Declaration of Human Rights, 1948 became the Magna Carta of people all over
the world. The first Article of the UDHR was uncompromising in its generality of
application:All human beings are born free and equal in dignity and rights. Justice Kirby
succinctly observed:-
―This language embraced every individual in our world. It did not apply only to citizens. It did
not apply only to 'white' people. It did not apply only to good people. Prisoners, murderers and
even traitors were to be entitled to the freedoms that were declared. There were no exceptions to
the principles of equality. 10
Homosexuals are also the part of the society and our constitution provides all the citizens equal
rights so they also have equal rights as guaranteed to heterosexuals so by the virtue of the
constitutional morality Section 377 of IPC is ultra-vires to constitution as it violates the
fundamental rights enshrined under Article 14, 19, 21 as it imposes restriction on the basis of

8
Ibid
9
Grote, A History of Greece. Routledge, London, 2000, p. 93
10
Human Rights Gay Rights by Michael Kirby, Published in ‘Humane Rights’ in 2016 by Future Leaders
gender , it restrict a person to express his\her love for the person whom they want to love, it also
harms the dignity of a person.

Societal behavior and Acceptance with dignity:

While discussing about the role of human dignity in gay rights adjudication and legislation,
Michele Finck11 observes:- ―
As a concept devoid of a precise legal meaning, yet widely appealing at an intuitive level,
dignity- can be easily manipulated and transposed into a number of legal contexts. With regard to
the rights of lesbian and gay individuals, dignity captures what Nussbaum described as the
transition from "disgust" to "humanity." Once looked at with disgust and considered unworthy of
some rights, there is increasing consensus that homosexuals should no longer be deprived of the
benefits of citizenship that are available to heterosexuals, such as the ability to contract marriage,
on the sole ground of their sexual orientation. Homosexuals are increasingly considered as "full
humans" disposing of equal rights, and dignity functions as the vocabulary that translates such
sociocultural change into legal change‖
India being a country of many religion and beliefs we have many kind of people living in the
society with whom we do daily routine work, we share our thoughts and do many things with the
people around us this is the societal behavior. The behavior of the people makes a group, a
society. A society is a group of individuals involved in persistent social interaction, or a large
social group sharing the same geographical or social territory, typically subject to the same
political authority and dominant cultural expectations. People of the society share thoughts and
expression that help them to feel comfortable in a society and to feel safe in the society, but in
case of homosexuals people before decriminalization of Sec. 377 of IPC the scenario with
homosexuals was not same as like other people they were not treated equally and simultaneously
the reaction of people towards homosexuals were very absurd. Such behavior or attitude towards
them makes them feel that they are not a part of our society. Their dignities were deteriorating.
Homosexuals not only face problems in their inmate lives but also in their family, professional

11
The role of human dignity in gay rights adjudication and legislation: A comparative
perspective, Michele Finck, International Journal of Constitutional Law, Volume 14, Jan 2016,
page no.26 to 53
life. They are viewed with a stigma of being gay or lesbian. This stigma and the niggling
comments lower their confidence in the society and compel them to either hide their feelings,
love, emotions or to live in the society with the taunts of being gay or lesbian which kills the
person and his/her fundamental rights because they are in minority and the people thinks that the
minority people does not have any right to live freely in the society as all the minorities are
living with the special support given by the constitution and law makers otherwise they are also
treated as they are not normal human being, Constitution provides special rights, support and
protection to the minority people on the basis of caste which is made by humans and don’t give
any special support, protection and help to the minority peoples who is made by the nature and
instead of providing help and support to the homosexual person, the law impose punishment
under Sec. 377 of IPC for fulfilling their natural desires which is given to them by the nature this
is against the constitutional morality.
In Government of NCT of Delhi v. Union of India and others12, one of us (Dipak Misra, CJI)
observed:-
"Constitutional morality, appositely understood, means the morality that has inherent elements in
the constitutional norms and the conscience of the Constitution. Any act to garner justification
must possess the potentiality to be in harmony with the constitutional impulse. We may give an
example. When one is expressing an idea of generosity, he may not be meeting the standard of
justness. There may be an element of condescension. But when one shows justness in action,
there is no feeling of any grant or generosity. That will come within the normative value. That is
the test of constitutional justness which falls within the sweep of constitutional morality. It
advocates the principle of constitutional justness without subjective exposition of generosity."
Constitutional morality guides the law to be in favor of everyone’s benefit and none of the
person should be harmed by any such law which violates the fundamental right of the person.
Homosexual people’s fundamental rights are abridged by Section 377 as this law imposes
unreasonable restriction on the basis of their sex, their natural desire and expression. They should
have been given more protection so that they live their life without any fear or stigma.
Even under article 12 of UDHR (Universal Declaration of Human Rights) 1948, makes a
reference to privacy by stating:-

12
2018 (8) SCALE 72
“No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.”
In the case of Dudgeon v. United Kingdom, privacy has been defined as under:-
“Perhaps the best and most succinct legal definition of privacy is that given by warren and
brandeis – It is the right to be let alone.”

Legal instances:
In National Legal Services Authority v. Union of India13, the SC has held that Transgender are
equally entitled for protection under Art. 14, 15, 16 and 21. The term ‘sex’ means gender identity
and it also includes those who are not considered as male or females.
In case of Naz Foundation v. Govt. of NCT of Delhi14, the Delhi High Court held the Sec. 377 of
IPC as unconstitutional as being violative of Art. 14, 15 & 21 of the Constitution of India. The
court also stated that to stigmise or to criminalize homosexuals on the basis of their sexual
orientation is against the constitutional morality. Public morality cannot be a valid ground for
curtailing fundamental rights of others.
The above judgement was overruled in the case of Suresh Kumar Koushal and Anr. V. Naz
15
Foundation and held that the Sec. 377 does not suffer from the vice of unconstitutionality. In
its judgment the Supreme court bench of justices G. S. Singhvi and S. J. Mukhopadhaya stated
that the miniscule fraction of the country’s population constitute lesbians, gay, bisexuals or
transgenders and in last more than 150 years and very few were prosecuted. So this cannot be
made as a sound basis for the declaration of Sec. 377 as unconstitutional.
But, in the very recent judgment of Supreme Court in Navtej Singh Johar & Ors. v. Union of
India thr. Secretary Ministry of Law and Justice16 that decriminalized all consensual sex among
adults in private, including homosexual sex under Sec. 377. The court further held that
Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a
numerical minority. The morality that public perceives, the Constitution may not conceive of.

13
A.I.R. 2014 S.C. 1863.
14
2010 Cr LJ 94 Delhi (DB).
15
A.I.R. 2014 S.C. 563.
16
W.P. (Crl.) No. 76 of 2016.
In K.S. Puttaswamy and Anr. V. U.O.I. and Ors. 17 the majority, speaking through Chandrachud,
J., has opined that sexual orientation is an essential component of rights guaranteed under the
Constitution which are not formulated on majoritarian favour or acceptance.
The major challenge faced by the homosexuals is the societal acceptance. Though the
Constitution has decriminalized consensual sex among adults but still there are many regions in
India where the homosexuals have to struggle a lot for their acceptance. To find a partner for
themselves is also a issue. Not every places in India consists the members having broad
mentality. In rural areas, even today after the decriminalization of Sec. 377 there is still not that
level of societal acceptance which we can see in urban areas. There is high relevancy of negative
attitude towards them. They are very much targeted to social discrimination, physical violence
and psychological torture which leads to suicidal attempts. They are also highly attributed
towards the risk of sexually transmitted diseases, depression, anxiety, HIV/AIDS, etc. Most of
the suicidal attempts in homosexuals are due to the depression, social non-acceptance, etc. All
they want is legal acceptance which they got in Navtej Singh case, along with social acceptance
and a life free from sexual racism. They want that they should also be treated alike the remaining
members of the society, and an understanding attitude towards them, towards their sexual
orientation.

Homosexuality in Different Countries

(I) United Sates

In the case of Lawrence v. Texas18, while dealing with the issue of decriminalization of sexual
conduct between homosexuals, the U.S. Supreme Court observed that the said issue neither
involved minors nor persons who might be injured or coerced or who are situated in relationships
where consent might not easily be refused nor did it involve public conduct or prostitution nor
the question whether the government must give formal recognition to any relationship that
homosexual persons seek to enter. The Court further observed that the issue related to two adults
who, with full and mutual consent of each other, engaged in sexual practices common to a
homosexual lifestyle. The Court declared that the petitioners were entitled to respect for their

17
2017 (10) S.C.C. 1
18
539 U.S. 558 (2003)
private lives and that the State could not demean their existence or control their destiny by
making their private sexual conduct a crime, for their right to liberty under the Due Process
Clause gives them the full right to engage in their conduct without the intervention of the State.

In Roberts v. United States Jaycees19, the Supreme Court of the United States observed:- "Our
decisions have referred to constitutionally protected "freedom of association" in two distinct
senses. In one line of decisions, the Court has concluded that choices to enter into and maintain
certain intimate human relationships must be secured against undue intrusion by the State
because of the role of such relationships in safeguarding the individual freedom that is central to
our constitutional scheme. In this respect, freedom of association receives protection as a
fundamental element of personal liberty. In another set of decisions, the Court has recognized a
right to associate for the purpose of engaging in those activities protected by the First
Amendment ~ speech, assembly, petition for the redress of grievances, and the exercise of
religion. The Constitution guarantees freedom of association of this kind as an indispensable
means of preserving other individual liberties. The intrinsic and instrumental features of
constitutionally protected association may, of course, coincide."

(II) Canada
The Supreme Court of Canada, in Delwin Vriend and others v. Her Majesty the Queen in Right
of Alberta and others81, while interpreting a breach of Section 15(1) of the Canadian Charter of
Rights and Freedoms, arrived at the conclusion that 'sex' includes sexual orientation.
Section 15(1) of the Charter reads thus:-
"Every individual is equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age or physical disability."

(III) South Africa

The Constitutional Court of South Africa in National Coalition for Gay & Lesbian Equality
(supra) made the following relevant observations:-

19
468 U.S. 609 (1984)
"Its symbolic effect is to state that in the eyes of our legal system all gay men are criminals. The
stigma thus attached to a significant proportion of our population is manifest. But the harm
imposed by the criminal law is far more than symbolic. As a result of the criminal offence, gay
men are at risk of arrest, prosecution and conviction of the offence of sodomy simply because
they seek to engage in sexual conduct which is part of their experience of being human. Just as
apartheid legislation rendered the lives of couples of different racial groups perpetually at risk,
the sodomy offence builds insecurity and vulnerability into the daily lives of gay men. There can
be no doubt that the existence of a law which punishes a form of sexual expression for gay men
degrades and devalues gay men in our broader society. As such it is a palpable invasion of their
dignity and a breach of section 10 of the Constitution."

(iv) United Kingdom

In Euan Sutherland v. United Kingdom20, the issue before the European Commission of Human
Rights was whether the difference in age limit for consent for sexual activities for homosexuals
and heterosexuals, the age limit being 16 years in the case of heterosexuals and 18 years in the
case of homosexuals, is justified. While considering the same, the Commission observed that no
objective and reasonable justification exists for the maintenance of a higher minimum age of
consent in case of male homosexuals as compared to heterosexuals and that the application
discloses discriminatory treatment in the exercise of the applicant's right to respect for
private life under Article 8 of the Convention. The Commission further observed that sexual
orientation was usually established before the age of puberty in both boys and girls and referred
to evidence that reducing the age of consent would unlikely affect the majority of men engaging
in homosexual activity, either in general or within specific age groups. The Council of the British
Medical Association (BMA) concluded in its Report that the age of consent for homosexual men
should be set at 16 since the then existing law might inhibit efforts to improve the sexual health
of young homosexual and bisexual men. An equal age of consent was also supported by the
Royal College of Psychiatrists, the Health Education Authority and the National Association of
Probation Officers as well as by other bodies and organizations concerned with health and social
welfare. It is further noted that equality of treatment in respect of the age of consent is now
recognized by the great majority of Member States of the Council of Europe.

20
2001 ECHR 234
Conclusion

The homosexuals and LGBT minorities have different sexual orientations which are contrary to
Indian beliefs, culture and religions. And there is presence of negative attitude and hatred
towards them. They are also targeted towards violence because of social taboos. We should have
to accept them open heartedly. And have to propagate these views towards those sections of
society where being homosexual is not acceptable in their own family, even. There should also
have to make proper health care and safety measures for homosexuals. The other members of the
society rather than homosexuals have to embrace this group so that they don’t feel themselves as
an alien or a taboo to their respected family or society. Many countries legalize the concept of
homosexuality on the ground to provide equality, liberty and good conscience to all the
individual and to spread humanity among the society so that every individual weather
homosexual, heterosexual, transgender or bisexual feels free, safe and equal in the society and
now it is the responsibility of the rest of the classes to take a better understanding of the sexual
orientation and don’t make any sexual racism. So that, Art. 21 of these groups did not infringe
because of the negative attitude of remaining members of the society.
References:
1. Older words for homosexuality, such as hemophilia and inversion have fallen into disuse.
Less frequently used terms are queer, homo, fag or faggot and dyke.
2. Vanita & Kidwai 2001, p. 25
3. http://www.hsph.harvard.edu/Organizations/healthnet/SAsia/suchana/0909/rh374.html
4. Sandeep Roy Chowdhury, ‘The best of both worlds? South Asian bisexuals speak out,’
India Currents, February issue, 1996.
5. Arvind Kala, Invisible Minority: the unknown world of the Indian homosexual (Dynamic
Books, New Delhi, 1994).
6. Constituent Assembly Debates, Vol. 7 (4th November 1948)
7. Grote, A History of Greece. Routledge, London, 2000, p. 93
8. A.I.R. 2014 S.C. 1863
9. 2010 Cr LJ 94 Delhi (DB).
10. Human Rights Gay Rights by Michael Kirby, Published in ‘Humane Rights’ in 2016 by
Future Leaders
11. The role of human dignity in gay rights adjudication and legislation: A comparative
perspective, Michele Finck, International Journal of Constitutional Law, Volume 14, Jan
2016, page no.26 to 53
12. 2018 (8) SCALE 72
13. A.I.R. 2014 S.C. 563.
14. W.P. (Crl.) No. 76 of 2016.
15. 2017 (10) S.C.C. 1
16. 539 U.S. 558 (2003)
17. 468 U.S. 609 (1984)
18. 2001 ECHR 234