Constitutional Morality As A Check On Criminalisation

Konark Pratap Gupta & Anushka, National Law University Delhi

ABSTRACT

The above title is defended by this paper by furnishing established Justification with help of Delhi High Court Judgment on "Naz Foundation v. Administration of NCT, 2009. The justification behind choosing a 2009 judgment of Delhi High Court rather than any most recent Supreme court judgment is straightforward that: the paper needs all of us to reflect back the year of 2009 when idea like "Constitutional Morality" was infrequently found in the light of Substantive Criminal Law. What's more, we ought not fail to remember that this judgment was also over ruled by the Supreme Court Suresh Kumar Koushal v. Naz Foundation, 2013 saying that the "matter and decision be left up to the Parliament." By using sentence like this the SC wanted the Penal policy on section 377 IPC should be decided by the none other than the legislature itself. Then finally this got settled under Navtej Singh Johar and ors. Vs. Union of Indian and ors, 2018 where the decision of the Delhi High court was upheld.

The paper also tried to justify the applicability of Constitutional principles in substantive criminal law by relating Joel Feinberg’s re-formulation of the harm principle in the light of Constitutional law.