Marriage is a samskara, homosexuality is perversity, vikruti

via Dr S Kalyanaraman published on July 5, 2009

 Marriage is a sacred institution under Hindu Law.. It cannot be subject to constitutional morality.

Crime is a public wrong. The determination of what is public wrong is by the Samajam, and cannot be within the jurisdiction of a court of law. It is for the courts to enforce ethical standards set by the public.

 The word crime originates from the Latin crÄ«men (genitive: criminis), from the root of Latin cernō = “I decide, I give judgement” and Greek  = “I judge”. Originally the Latin word crÄ«men meant “charge (in law), guilt, accusation” (Oxford English Dictionary, 2nd edition, 1989). A normative definition views crime as deviant behavior that violates prevailing norms  €“ cultural standards prescribing how humans ought to behave normally. http://en.wikipedia.org/wiki/Crime

Section 377 laid down homosexuality as a crime and is consistent with the ethical standards set by the public.

The very foundation of the Samajam is

·          a family governed by a respect for the traditions handed down to us by our elders;

·          a family which respects the natural laws and spirituality of every atman

·          a family which cherishes family values starting with a respect for the mother, matr devo bhava.

The ethical framework of this foundation is clearly NOT the atomized individual but the individual as a part of a larger network of relationships evolved through samskaras, respect for the mother, respect for the elders and responsibility towards the children and the helpless.

Marriage is a samskara which ensures the stability of the family as the founding institution of the polity. The marriage is sanctified by the responsibility to strengthen the marital bond and by a vow to care for the offspring born out of wedlock. Homosexuality makes a mockery of the marriage as the foundation institution of the Samajam.    `

Hindu law related to marriage, adoption, inheritance, religious usages are a compendium of treatises derived from dharmashastras and dharmashastra traditions determining dharma, the fundamental duty of every citizen. This is the foundation of the Indian Constitutional morality and cannot be overridden by any legal interpretations. Fundamental duty overrides individual rights; this is Hindu law. If the Constitution is interpreted as framed only on the basis of liberties of individuals, it is an erroneous interpretation foisted by the courts of law.

This is a fundamental difference between Hindu Law and Anglo-Saxon Law: fundamental duty, dharma is the source of all laws codified by shrutis, smrutis and aacaara. What we have in vogue through a mish-mash of Macaulay-based criminal procedures is a hybrid referred to as Anglo-Hindu law.

It is time that we get back to Hindu law as the uniform civil and criminal code of the nation of Hindusthan.

Vyavahara is a matter justiciable before a court of law. The samskara of marriage governed by the sanctity and spirituality of motherhood and fatherhood are NOT justiciable in a court of law.

If public morality determines it to be deviant behaviour to indulge in, say, gay sex, no constitutional morality clause can be invoked by any court of law. Public morality is supreme and the courts are bound by this morality expressed through unambiguous laws as in Section 377 of CrPC.

To claim constitutional morality as superior to public morality is a travesty of justice and goes against the very grain of separation of powers. If the courts are confused about Constitutional provisions, the people enact appropriate Constitutional amendments to make it abundantly clear to the Courts that homosexuality is deemed to be unacceptable, deviant, vikruti Criminal behavior.

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