@article{2018:bagchi:transforma,
title = {Transformative Constitutionalism, Constitutional Morality and Equality: The Indian Supreme Court on Section 377},
year = {2018},
note = {What role does the Indian Constitution play towards the emancipation
of the society’s most marginalized and excluded? What vision does
the Constitution espouse with respect to basic fundamental rights and
freedoms? And what conception of inclusion and pluralism does the
Constitution pursue in a society that remains deeply divided and
disjointed? All these searching questions came to form a distinct part
of the decision of the Indian Supreme Court when it was called upon to
rule on the constitutional validly of Section 377 of the Indian Penal
Code, 1860. Section 377, which for centuries created an atmosphere of
criminalization, discrimination and disadvantage for LGBT+ peoples was
declared unconstitutional to the extent that it prohibits consensual
sexual acts between two adults, whether of a heterosexual or
homosexual nature. Through 500 pages of judicial reasoning and four
concurring opinions, the Court displayed an acute understanding of
both the text and the spirit of the Indian Constitution. It understood
that ‘transformation’ was at the heart and soul of the
Constitution, which had the particular mandate of ushering
far-reaching social change within the Indian society. This article
brings out that focus and argues that through its decision the Court
unleashed fully, the transformative potential of the Indian
Constitution.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {367--380},
author = {Bagchi, Kanad},
volume = {51},
number = {3}
}