Suchergebnisse

"This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A powerful, privately-owned television channel refuses to air an advertisement advocating equal rights for the LGBT community. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power"--

The Indian Supreme Court's judgment in Navtej Singh Johar, delivered in September 2018, decriminalizing same-sex relations in India, generated a storm of discussion and debate, in both India and in the world beyond. Apart from its clear and sharp verdict that held that the Indian Constitution protected the rights of the LGBTQ+ community, the decision was also noteworthy because it reversed the Court's own prior judgment, delivered a mere five years before (in 2013), that had upheld the constitutional validity of the law that penalized same-sex relations.
In this case comment, we set out the chronology of judicial decisions that led to the final judgment in Navtej Singh Johar: the judgment of the High Court of Delhi in 2009, which first decriminalized same-sex relations, the 2013 judgment of the Indian Supreme Court that reversed it, and the various judicial proceedings that continued to rumble on in the Court—an additional round known as the 'curative hearing', and separate litigation on the constitutional status of the right to privacy. Within this context, the paper then discusses the multiple opinions that were delivered by the Bench in Navtej Singh Johar, and examines the reasons on the basis of which the Court held that Section 377 of the Indian Penal Code—insofar as it criminalized same-sex relations between consenting adults—violated the fundamental rights to equality, nondiscrimination, freedom of expression, and life and personal liberty, guaranteed by the Constitution of India. The article will conclude by setting out some possibilities for the way forward, in light of the judgment.