`India has to find its own solution'

Print edition : January 16, 2004

Justice Michael Kirby of the Australian High Court. - BY SPECIAL ARRANGEMENT

Interview with Justice Michael Kirby.

Justice Michael Kirby is one of the seven Judges of the High Court of Australia, the apex court of that country. He has, through his progressive judgments helped formulate many legal principles relating to human rights and Human Immunodeficiency Virus/ Acquired Immune Deficiency Syndrome (HIV/AIDS). He served as the Special Representative to the Secretary-General of the United Nations on Human Rights in Cambodia between 1993 and 1996. In 1998, he was named Laureate of the UNESCO Prize for Human Rights Education. He was elected President of the International Commission of Jurists in 1995. He was also part of the team that prepared the Judicial Training Manual on Human Rights for the U.N. Centre for Human Rights in 1997. He has a keen interest in initiatives to tackle HIV/AIDS in India and addresses members of the judiciary, legal community, policy-makers and representatives of non-governmental organisations (NGOs) across the country every year. During his recent visit to Delhi in December to attend a colloquium organised by the Parliamentary Committee on HIV/AIDS and the Lawyers Collective HIV/AIDS Unit, he spoke to Siddharth Narrain. Excerpts from the interview:

What has your programme in India involved so far?

This is one of the series of visits that I have made to India to have discussions with judges, lawyers, and NGOs regarding initiatives on legal issues surrounding HIV/AIDS. The object is to inform Indian friends of the course of legal responses to the epidemic in countries that have been in the vortex zone for a much longer period than India.

How responsive have Indian judges been to these efforts?

Being a judge myself, I am respectful of the independence of the Judges here and my aim is to help them have a better professional and personal insight into the issue. I have personally sat on the bedside of 12 persons who died of the epidemic. I have been involved in the issue by working with UNAIDS (the Joint United Nations Programme on HIV/AIDS) and WHO (World Health Organisation). India has to find its own solution but the experience of others can help.

How has the Australian legislature dealt with the threat of HIV/AIDS?

Australian law-makers found that, paradoxically, the best way to change people's behaviour was by protecting them. All Australian States agreed to adopt needle exchange systems by which one can go to any pharmacy across Australia, deposit a used syringe and get a new one. The Australian Parliament took this step, though it was in the middle of a war against drugs as it realised that even if dependence on drugs was bad, the fact that people were dying was even worse. The government also changed existing laws to make condoms available in every public toilet. Also laws that criminalise sodomy were done away with.

What do you think of the Indian government's response to the petition seeking the repeal of the law criminalising sodomy in India (Section 377 of the Indian Penal Code) where one of the main arguments of the petitioners is that the law will prevent HIV/AIDS outreach work.

I cannot comment on the Indian government's decision but we need to look at other countries where similar laws have been repealed by legislative means or have been held to be unconstitutional by courts. In some parts of the world this has happened with the aid of international bodies like the United Nations Human Rights Committee (as in the case of Tasmania) or by the European Court of Human Rights (as in the cases of Northern Ireland, Ireland and Cyprus).

What is your opinion on the latest United States Supreme Court judgment that has struck down anti-sodomy laws there?

In Lawrence vs Texas in 2003, the U.S. Supreme Court held by a majority that a discriminatory criminal law which punishes only sexual acts by homosexuals even if performed in private by consenting adults, as unconstitutional. There is a very interesting passage at the end of the judgment in which Justice Kennedy, writing for the court, says that the drafters of the Constitution perhaps did not perceive every aspect of liberty. Every generation has to look into the Constitution of the country to see if there are new reflections of liberty there. This has been our approach to constitutional interpretation.

How has the Australian judiciary responded to the issue of HIV/AIDS and the rights of sexual minorities?

The Australian judiciary, as the case of the judiciary in India, has a wide range of views. In all countries, the judiciary reflects growing enlightenment about human sexuality. Earlier the white Australian community hardly interacted with Asians. That has changed now. Similarly it is easy to hate gay people when you do not know them.

How important is the human rights discourse to societal change?

In Australia we do not have a bill of rights. We use the common law, which contains respect for human rights. India has a bill of rights, which gives lawyers and judges the tools to advance the rights of minorities. The judiciary in India has been the foremost in utilising these tools. I do not have any time for the term `judicial activism'. It is a term that is often a label put on people to express criticism. A bill of rights in effect mandates a measure of activism on the part of judges when it is relevant.

Does ideology play an important role in deciding cases?

Every judge brings with him/her a measure of attitudes that come from parental instruction, religion and education. It would be futile to deny that judges are not influenced by such factors. The law has an ideology of its own. By its nature it tends to be status quoist and conservative. Therefore it is an interesting question if because of its nature it attracts conservative thinking people.

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