EMERGING FACETS OF GENDER JUSTICE IN LIGHT OF HART- DEVLIN DEBATE AND JUDICIAL DECISIONS IN INDIA

Abstract

In a democratic society, the freedom of expressing viewpoints on any issue is a valuable right in the hands of citizens which helps in the incorporation of diverse thought processes. The term expression is a broader concept which is inclusive of choices an individual has to make concerning different aspects of human life. The freedom isn’t absolute as there exist multiple safeguards under the constitutional provisions which restrict the abuse of the right provided to the citizens. Apart from the constitution, different provisions exist under the law which makes acts harming the society punishable offense. There exist a balanced situation where people are allowed to express what they want and at the same time, social harmony is maintained by having some restrictions against freedom given. This balance is disrupted when one section of a society intends to impose their views on the others who have a contrary opinion. Through judicial decisions, the concept of what ‘gender’ entails is analysed which includes the analysis of right of LGBTQ community and application of constitutional morality in giving women their rights as seen in the Sabrimala judgement. The current article analyses both these concepts by taking into account the Hart vs Devlin debate. In India, there have been few instances in the past where a conflicting situation of popular viewpoint prevailing from a long time duration was challenged as violative of constitutional provisions. This article analyzes those cases and further explains where those judgments stand from the point of the Hart vs. Devlin debate.

References

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