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[Cover Point]

 ... many others on the DG may like it too

Gay sex decriminalised in India

Rights groups have long campaigned for a repeal of the law
A court in the Indian capital, Delhi, has ruled that homosexual intercourse between consenting adults is not a criminal act.
The ruling overturns a 148-year-old colonial law which describes a same-sex relationship as an "unnatural offence".
Homosexual acts were punishable by a 10-year prison sentence.
Many people in India regard same-sex relationships as illegitimate. Rights groups have long argued that the law contravened human rights.
Have Your Say
I cannot welcome the rule morally or wholeheartedly
A R Shams, Pakistan
See more of your comments
Delhi's High Court ruled that the law outlawing homosexual acts was discriminatory and a "violation of fundamental rights".
The court said that a statute in Section 377 of the Indian Penal Code, which defines homosexual acts as "carnal intercourse against the order of nature" and made them illegal, was an "antithesis of the right to equality".
'India's Stonewall'
The ruling is historic in a country where homosexuals face discrimination and persecution on a daily basis but it is likely to be challenged, says the BBC's Soutik Biswas in Delhi.
   


Activists welcome 'historic' ruling
It also promises to change the discourse on sexuality in a largely conservative country, where even talking about sex is largely taboo, our correspondent says.
Gay rights activists all over the country welcomed the ruling and said it was "India's Stonewall".
New York's Stonewall riot in 1969 is credited with launching the gay rights movement.
"It [the ruling] is India's Stonewall. We are elated. I think what now happens is that a lot of our fundamental rights and civic rights which were denied to us can now be reclaimed by us," activist and lawyer Aditya Bandopadhyay told the BBC.
"It is a fabulously written judgement, and it restores our faith in the judiciary," he said.
Leading gay rights activist and the editor of India's first gay magazine Ashok Row Kavi welcomed the judgement but said the stigma against homosexuals will persist.
   
TEXT OF COURT JUDGEMENT
Delhi High Court judgement overturning Section 377 of India's Penal Code
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"The social stigma will remain. It is [still] a long struggle. But the ruling will help in HIV prevention. Gay men can now visit doctors and talk about their problems. It will help in preventing harassment at police stations," Mr Kavi told the BBC.
But the decision was greeted with unease by other groups.
Father Dominic Emanuel of India's Catholic Bishop Council said the church did not "approve" of homosexual behaviour.
"Our stand has always been very clear. The church has no serious objection to decriminalising homosexuality between consenting adults, the church has never considered homosexuals as criminals," said Father Emanuel.
"But the church does not approve of this behaviour. It doesn't consider it natural, ethical, or moral," he said.
   
FROM BBC WORLD SERVICE


More from BBC World Service
The head cleric of Jama Masjid, India's largest mosque, criticised the ruling.
"This is absolutely wrong. We will not accept any such law," Ahmed Bukhari told the AFP news agency.
In 2004, the Indian government opposed a legal petition that sought to legalise homosexuality - a petition the high court in Delhi dismissed.
But rights groups and the Indian government's HIV/Aids control body have demanded that homosexuality be legalised.
The National Aids Control Organisation (Naco) has said that infected people were being driven underground and efforts to curb the virus were being hampered.
According to one estimate, more than 8% of homosexual men in India were infected with HIV, compared to fewer than 1% in the general population.

[RicePlateReddy]

... many others on the DG may like it too

Absolutely! How often do you see the Indian judiciary making a strong ruling indicative of progressive thinking and human rights? The ruling was a welcome surprise, considering the news articles suggested that India was all set to continue with the antiquated ruling and allow the police to continue their harassment and extortion. I hope this prompts more G/L folks to come out of hiding and live with dignity.

[Aloo Kashmiri Ul Haq]

now the Indian judiciary needs to advertise anal sex in the sugar belt of India. That combined with this law would put a stop on the increasing population

[keep-it-cool]

government is unlikely to appeal. this is a godsend for it as changing legislation in parliament would have been a nightmare

[LosingNow]

this issue is clearly a priority area for a develping nation like ours..how else will we be considered as a country that has arrived. seriously, who the fruit cares whether .01 percent of the population can screw and live with each other or not. our metros are seriously trapped in this ape the west mindset.

[LosingNow]

procedurally, how can a court change the law of the land..that is the role of legislature. what am I missing?

if what I believe is the process..this is scary as activist judges can now willy nilly create the laws of the land.

[keep-it-cool]

This will stand only if not appealed against - which the legislature has the right to do. However, if the government chooses, it can let the ruling stand - thus letting it be a precedent. That is what I understand from a few people I spoke to.

[LosingNow]

This will stand only if not appealed against - which the legislature has the right to do. However, if the government chooses, it can let the ruling stand - thus letting it be a precedent. That is what I understand from a few people I spoke to.

Why should the legislature only appeal... I would think a common citizen can appeal too.

Irrespective of the desirability/undesirability of the result, IMO, the court has taken over an extra-constitutional role here...and someone should challenge this.

[kban1]

This will stand only if not appealed against - which the legislature has the right to do. However, if the government chooses, it can let the ruling stand - thus letting it be a precedent. That is what I understand from a few people I spoke to.

Why should the legislature only appeal... I would think a common citizen can appeal too.

Irrespective of the desirability/undesirability of the result, IMO, the court has taken over an extra-constitutional role here...and someone should challenge this.

Why has the court taken an extra constitutional hand ?

It is the role of the judiciary to interpret the constitution. It is precisely in that role that the judiciary has ruled that criminilization of a particular sexual act violates the equal protection clause of the constitution.

If the legislature can change the constitution via amendment or statute, thats a different issue.

Until then, it is the role of the judiciary to interpret the constitution and strike down as illegal any statute or law which violates the principles enshrined in the constitution.


As to whether a common citizen can appeal --sure he / she can. Appeal to your elected representatives, let them bring it up in the legislature, let the legislature garner the 2/3rd majority required to change the constitution and insert the clause specifically defining "legitimate sexual union" as one between opposite sexes, and then this ruling of the court will have no value.

Until then, there is nothing wrong in what the court has done. You can argue on either side of the decision but to question the court's locus standi in interpreting the constitution is baloney.

[dextrous]

This will stand only if not appealed against - which the legislature has the right to do. However, if the government chooses, it can let the ruling stand - thus letting it be a precedent. That is what I understand from a few people I spoke to.

Why should the legislature only appeal... I would think a common citizen can appeal too.

Irrespective of the desirability/undesirability of the result, IMO, the court has taken over an extra-constitutional role here...and someone should challenge this.

Why has the court taken an extra constitutional hand ?

It is the role of the judiciary to interpret the constitution. It is precisely in that role that the judiciary has ruled that criminilization of a particular sexual act violates the equal protection clause of the constitution.

If the legislature can change the constitution via amendment or statute, thats a different issue.

Until then, it is the role of the judiciary to interpret the constitution and strike down as illegal any statute or law which violates the principles enshrined in the constitution.


As to whether a common citizen can appeal --sure he / she can. Appeal to your elected representatives, let them bring it up in the legislature, let the legislature garner the 2/3rd majority required to change the constitution and insert the clause specifically defining "legitimate sexual union" as one between opposite sexes, and then this ruling of the court will have no value.

Until then, there is nothing wrong in what the court has done. You can argue on either side of the decision but to question the court's locus standi in interpreting the constitution is baloney.

Well, conservatives have learned a new trick--call a court whose ruling they don't like 'activist'--end of debate, no argument.

[LosingNow]

Dex : For some reason, I predicted and expected this exact response from you even when I was trping my previous post.

This has nothing to do with conservative vs liberal - matter of fact, I agree with the end result..(who cares, let them screw animals or dolls in their bedrooms!)  all I am questioning is the process and prioritization ...but that point obviously would not register in your "us vs them" head .. hota hai!!

[WicketView]

This will stand only if not appealed against - which the legislature has the right to do. However, if the government chooses, it can let the ruling stand - thus letting it be a precedent. That is what I understand from a few people I spoke to.

Why should the legislature only appeal... I would think a common citizen can appeal too.

Irrespective of the desirability/undesirability of the result, IMO, the court has taken over an extra-constitutional role here...and someone should challenge this.

Why has the court taken an extra constitutional hand ?

It is the role of the judiciary to interpret the constitution. It is precisely in that role that the judiciary has ruled that criminilization of a particular sexual act violates the equal protection clause of the constitution.

If the legislature can change the constitution via amendment or statute, thats a different issue.

Until then, it is the role of the judiciary to interpret the constitution and strike down as illegal any statute or law which violates the principles enshrined in the constitution.


As to whether a common citizen can appeal --sure he / she can. Appeal to your elected representatives, let them bring it up in the legislature, let the legislature garner the 2/3rd majority required to change the constitution and insert the clause specifically defining "legitimate sexual union" as one between opposite sexes, and then this ruling of the court will have no value.

Until then, there is nothing wrong in what the court has done. You can argue on either side of the decision but to question the court's locus standi in interpreting the constitution is baloney.

Honest question: I am aware that the law used against homosexuality did not mention homosexuality specifically, and was couched in some phrase like 'against order of nature' ... (may not be exact words). The question is has the ruling interpreted that homosexuality will not be interpreted as 'against the order of nature' or has it done away with the statement altogether?

[dextrous]

Dex : For some reason, I predicted and expected this exact response from you even when I was trping my previous post.

This has nothing to do with conservative vs liberal - matter of fact, I agree with the end result..(who cares, let them screw animals or dolls in their bedrooms!)  all I am questioning is the process and prioritization ...but that point obviously would not register in your "us vs them" head .. hota hai!!

"Us" vs "them"? Funny, coming from someone who uses the term activist judges to describe decriminilization of homosexuality! The process, of course, is being questioned here due to the result. When conservative judges do it, it is interpretation, when liberal judges do it, its activism. Wah.

As far as prioritization goes, I'm sure there are 100s of cases that are ruled on every single day--just that this one caught media and your eyes.

[ruchir]

Dex, Pitamah --

A quote from the original post.

A court in the Indian capital, Delhi, has ruled that homosexual intercourse between consenting adults is not a criminal act.
The ruling overturns a 148-year-old colonial law which describes a same-sex relationship as an "unnatural offence".

So, it was in the constitution of India that same-sex relationship was considered criminal. That was in the constitution. A judge is supposed to interpret the constitution. What exactly did the court do?

Delhi's High Court ruled that the law outlawing homosexual acts was discriminatory and a "violation of fundamental rights".
The court said that a statute in Section 377 of the Indian Penal Code, which defines homosexual acts as "carnal intercourse against the order of nature" and made them illegal, was an "antithesis of the right to equality".

The court ruled that the law written in constitution is wrong. That is beyond the brief of a judge or a court. Right or wrong, correct or incorrect, a court has to make it's rulings based on whatever is written in the constitution. A court has not business declaring whether the laws in the constitution themselves are correct or incorrect. That is for the legislature to decided.

WN is correct in calling these judged as "activists" because they went beyond their normal working procedures and power while making this ruling. This decision can be very easily overturned if a citizen chooses to file a PIL - public interest litigation - against this decision, saying that the decision was arrived at by using incorrect procedures. Whether that happens or not is another matter.


IMO this law was ridiculous to begin with. Constitution should not be outlawing intercourse between two humans. But they did. Still Delhi court can not call this law as unconstitutional or violating anything because it is already there in the constitution. Whatever is in the constitution is the law of the land, and courts have to rule by it. If anyone doesn't like a law, have it changed/repealed through proper process. Simple...

[WicketView]

Ruchir:

I think the constitution is different from the Indian Penal Code. Ammending the constitution is (and should be) much more difficult.

Dex, Pitamah --

A quote from the original post.

A court in the Indian capital, Delhi, has ruled that homosexual intercourse between consenting adults is not a criminal act.
The ruling overturns a 148-year-old colonial law which describes a same-sex relationship as an "unnatural offence".

So, it was in the constitution of India that same-sex relationship was considered criminal. That was in the constitution. A judge is supposed to interpret the constitution. What exactly did the court do?

Delhi's High Court ruled that the law outlawing homosexual acts was discriminatory and a "violation of fundamental rights".
The court said that a statute in Section 377 of the Indian Penal Code, which defines homosexual acts as "carnal intercourse against the order of nature" and made them illegal, was an "antithesis of the right to equality".

The court ruled that the law written in constitution is wrong. That is beyond the brief of a judge or a court. Right or wrong, correct or incorrect, a court has to make it's rulings based on whatever is written in the constitution. A court has not business declaring whether the laws in the constitution themselves are correct or incorrect. That is for the legislature to decided.

WN is correct in calling these judged as "activists" because they went beyond their normal working procedures and power while making this ruling. This decision can be very easily overturned if a citizen chooses to file a PIL - public interest litigation - against this decision, saying that the decision was arrived at by using incorrect procedures. Whether that happens or not is another matter.


IMO this law was ridiculous to begin with. Constitution should not be outlawing intercourse between two humans. But they did. Still Delhi court can not call this law as unconstitutional or violating anything because it is already there in the constitution. Whatever is in the constitution is the law of the land, and courts have to rule by it. If anyone doesn't like a law, have it changed/repealed through proper process. Simple...

[RicePlateReddy]

So, it was in the constitution of India that same-sex relationship was considered criminal. That was in the constitution. A judge is supposed to interpret the constitution. What exactly did the court do?

The court ruled that the law written in constitution is wrong. That is beyond the brief of a judge or a court. Right or wrong, correct or incorrect, a court has to make it's rulings based on whatever is written in the constitution. A court has not business declaring whether the laws in the constitution themselves are correct or incorrect. That is for the legislature to decided.

Incorrect assumptions Ruchir -- the constitution does not mention anything about same sex union being outlawed at all. FYI, the most relevant section of the Indian constitution that I could find was:


15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(Note that 'sex' in the first sentence is quite obviously, from context and history, meant to be gender and not the act! Now please don't argue that with the help of a dictionary  )

The Indian Penal Code Section 377 says:

Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Based on the above extract, the debate on the court being extra constitutional devolves to the time honored debate between original intent versus living document. Scalia versus Stevens Sotomayor 

I disagree with WN because I am in the "living document" camp, but I do not in any way call his objection ("original intent") spurious.

[LosingNow]

ssl:
What makes it a "living document" - judicial interpretation over time OR legislative process.

My assumption is you will say, depends...and I would agree.

The US constitution has been a fairly stable document over time ..while Indian one has evolved in its short history through many amendments. I would rather, till our judiciary and the judicial process matures, rely on the legislative process than these judges .. because they are elected and have some semblance of  accountability to people.

Personally, I think the process around this ruling sets a dangerous precedent in our young and immature democracy.

Tomorrow, a bunch of judges in XYZ court can say that having a separate Hindu Family Law etc is against the principle of the equality of religion enshrined in our constitution..and out it goes.

Next comes a tit for tat from another bunch of judges in another court about Islamic Family Law etc..

..and we will have a mess on our hands.

BTW, for the record, I favor a Uniform Civil Code in India.. but we all know that the time to implement that was when the constitution was framed and now it is perhaps too late!

[dextrous]

What in the world has the constitution got to do with this?! This archaic colonial law contradicts the constitutional rights of an Indian citizen. That's the issue.

In fact, while we are at it, we should remove all these archaic Victorian era laws from our books and re-visit them.

[keep-it-cool]

Dex, Pitamah --

A quote from the original post.

A court in the Indian capital, Delhi, has ruled that homosexual intercourse between consenting adults is not a criminal act.
The ruling overturns a 148-year-old colonial law which describes a same-sex relationship as an "unnatural offence".

So, it was in the constitution of India that same-sex relationship was considered criminal. That was in the constitution. A judge is supposed to interpret the constitution. What exactly did the court do?

Delhi's High Court ruled that the law outlawing homosexual acts was discriminatory and a "violation of fundamental rights".
The court said that a statute in Section 377 of the Indian Penal Code, which defines homosexual acts as "carnal intercourse against the order of nature" and made them illegal, was an "antithesis of the right to equality".

The court ruled that the law written in constitution is wrong. That is beyond the brief of a judge or a court. Right or wrong, correct or incorrect, a court has to make it's rulings based on whatever is written in the constitution. A court has not business declaring whether the laws in the constitution themselves are correct or incorrect. That is for the legislature to decided.

WN is correct in calling these judged as "activists" because they went beyond their normal working procedures and power while making this ruling. This decision can be very easily overturned if a citizen chooses to file a PIL - public interest litigation - against this decision, saying that the decision was arrived at by using incorrect procedures. Whether that happens or not is another matter.


IMO this law was ridiculous to begin with. Constitution should not be outlawing intercourse between two humans. But they did. Still Delhi court can not call this law as unconstitutional or violating anything because it is already there in the constitution. Whatever is in the constitution is the law of the land, and courts have to rule by it. If anyone doesn't like a law, have it changed/repealed through proper process. Simple...

This is not so simple. The provisions of the law, in a way, contradicts the provisions of the constitution. A judge can look at the two issues and decide which one should take precedence. Here the court decided in one direction - nothing wrong with it. That is its interpretation. As I mentioned earlier, there is always the option to appeal with the legislature or even a common citizen (via a PIL). However, the government (in this case) may decide to not appeal at all and let the ruling stand.

[keep-it-cool]

This will stand only if not appealed against - which the legislature has the right to do. However, if the government chooses, it can let the ruling stand - thus letting it be a precedent. That is what I understand from a few people I spoke to.

Why should the legislature only appeal... I would think a common citizen can appeal too.

Irrespective of the desirability/undesirability of the result, IMO, the court has taken over an extra-constitutional role here...and someone should challenge this.

I agree with Kban. There is nothing extra-constitutional here. The court has to take note of any contradictions between a law and provisions of the constitution - and there appears to be a conflict here. Of course, there is scope to appeal, if someone desires to do so.

[LosingNow]

It ain't over yet..

--
Yoga can 'treat' homosexuality, says Baba Ramdev

Yoga guru Baba Ramdev [ Images ] will approach the Supreme Court on Wednesday to challenge the Delhi [ Images ] High Court judgment legalising gay sex among consenting adults. The petition is likely to be filed on Wednesday, lawyers associated with Ramdev said.


Ramdev, quoting Spanish psychiatrist Enrique Rojas, contended that homosexuality is a disease that is curable. "It can be treated like any other congenital defect. Such tendencies can be treated by yoga, pranayam and other meditation techniques," he said in the petition.

The high court, in a landmark verdict, legalised gay sex among consenting adults, which was earlier an offence under Section 377 of the Indian Penal Code. The verdict had retained the penal provision for non consenting gay and homosexual acts involving minors.


Ramdev, in his petition, contended that legislative mandate under section 377 of IPC did not infringe the right to privacy of persons indulging in homosexual activities, as held by the high court.

He maintained that Section 377 is not violative of the right to dignity of an individual and reduction in purview in the penal provision would aid in promoting homosexual activities which are primarily responsible for the spread of HIV.

Lawyers Suresh Sharma and *harva Makker said the petition challenging the high court verdict was to be filed on Tuesday but was delayed due to 'unavoidable circumstances'.


They said the yoga guru has challenged the July 2 judgment contending that homosexual activities are not only against public morality, public health and healthy environment but also against the interest of the society.

"The decision of the high court, if allowed to sustain, will have catastrophic effects on the moral fabric of society and will jeopardise the institution of marriage itself. This offends the structure of the Indian value system, Indian culture and traditions, as derived from religious scriptures," it said. 

[Cover Point]

next he would say that yoga can cure gangulianism

[flute]

BTW, for the record, I favor a Uniform Civil Code in India.. but we all know that the time to implement that was when the constitution was framed and now it is perhaps too late!

your post made me post after a long time. Please review your quote below from the "temple priest clean up after minister visit" thread. In which instance did you mention your real opinion and in which instance did you. .. 

hum post nahi kar rahe hain ka matlab ye nahi ki aap apne man maani kare 

BTW, IMO, even marriages are not the state's business.. who cares if a guy "marries" another guy or many gals or many guys. Let their own religions decide.  From the point of view of custody, common tax benefits etc.. which by default are affairs of the state, civil unions - which are civil contracts between consenting adults - can serve the purpose.

[flute]

Dex, Pitamah --

A quote from the original post.

A court in the Indian capital, Delhi, has ruled that homosexual intercourse between consenting adults is not a criminal act.
The ruling overturns a 148-year-old colonial law which describes a same-sex relationship as an "unnatural offence".

So, it was in the constitution of India that same-sex relationship was considered criminal. That was in the constitution. A judge is supposed to interpret the constitution. What exactly did the court do?

Delhi's High Court ruled that the law outlawing homosexual acts was discriminatory and a "violation of fundamental rights".
The court said that a statute in Section 377 of the Indian Penal Code, which defines homosexual acts as "carnal intercourse against the order of nature" and made them illegal, was an "antithesis of the right to equality".

The court ruled that the law written in constitution is wrong. That is beyond the brief of a judge or a court. Right or wrong, correct or incorrect, a court has to make it's rulings based on whatever is written in the constitution. A court has not business declaring whether the laws in the constitution themselves are correct or incorrect. That is for the legislature to decided.

WN is correct in calling these judged as "activists" because they went beyond their normal working procedures and power while making this ruling. This decision can be very easily overturned if a citizen chooses to file a PIL - public interest litigation - against this decision, saying that the decision was arrived at by using incorrect procedures. Whether that happens or not is another matter.


IMO this law was ridiculous to begin with. Constitution should not be outlawing intercourse between two humans. But they did. Still Delhi court can not call this law as unconstitutional or violating anything because it is already there in the constitution. Whatever is in the constitution is the law of the land, and courts have to rule by it. If anyone doesn't like a law, have it changed/repealed through proper process. Simple...

Ruchir, you are way off base my friend and I am surprised at the kind of finality you seem to display in your assertion about an issue which is legal and constitutional. Don't you know courts are the watch dogs of the constitution? don't you know any executive or legislature anywhere in the world cannot write whatever they want into laws even if they have full majority in the legislature? no matter how much majority you have in legislature, nobody can tinker with the basic nature of constitution and the rights guaranteed there in? do you think UPA govt.  is allowed to take away my right to equality with a new law? if UPA govt. comes up with such a law, don't you think courts are allowed to strike down such a thing citing the essential equality enshrined in constitution/

 It is a legitimate and required responsibility of the judiciary to make sure any laws/changes to consitution are in confirmity with the essential spirit of consitution, especially so in a coutnry like India where there is no clear division between legislature and executive.

[LosingNow]

BTW, for the record, I favor a Uniform Civil Code in India.. but we all know that the time to implement that was when the constitution was framed and now it is perhaps too late!

your post made me post after a long time. Please review your quote below from the "temple priest clean up after minister visit" thread. In which instance did you mention your real opinion and in which instance did you. .. 

hum post nahi kar rahe hain ka matlab ye nahi ki aap apne man maani kare 

BTW, IMO, even marriages are not the state's business.. who cares if a guy "marries" another guy or many gals or many guys. Let their own religions decide.  From the point of view of custody, common tax benefits etc.. which by default are affairs of the state, civil unions - which are civil contracts between consenting adults - can serve the purpose.

What exactly is inconsistent between the 2 things I have written?

[kban1]

Dex, Pitamah --

A quote from the original post.

A court in the Indian capital, Delhi, has ruled that homosexual intercourse between consenting adults is not a criminal act.
The ruling overturns a 148-year-old colonial law which describes a same-sex relationship as an "unnatural offence".

So, it was in the constitution of India that same-sex relationship was considered criminal. That was in the constitution. A judge is supposed to interpret the constitution. What exactly did the court do?

Delhi's High Court ruled that the law outlawing homosexual acts was discriminatory and a "violation of fundamental rights".
The court said that a statute in Section 377 of the Indian Penal Code, which defines homosexual acts as "carnal intercourse against the order of nature" and made them illegal, was an "antithesis of the right to equality".

The court ruled that the law written in constitution is wrong. That is beyond the brief of a judge or a court. Right or wrong, correct or incorrect, a court has to make it's rulings based on whatever is written in the constitution. A court has not business declaring whether the laws in the constitution themselves are correct or incorrect. That is for the legislature to decided.

WN is correct in calling these judged as "activists" because they went beyond their normal working procedures and power while making this ruling. This decision can be very easily overturned if a citizen chooses to file a PIL - public interest litigation - against this decision, saying that the decision was arrived at by using incorrect procedures. Whether that happens or not is another matter.


IMO this law was ridiculous to begin with. Constitution should not be outlawing intercourse between two humans. But they did. Still Delhi court can not call this law as unconstitutional or violating anything because it is already there in the constitution. Whatever is in the constitution is the law of the land, and courts have to rule by it. If anyone doesn't like a law, have it changed/repealed through proper process. Simple...

Ruchirbhai:

The law was not written in the constitution.

The law is a hand me down from the preindependence days.

The court's job (when the case is brought forward to it) is to interpret the law and see if it is consistent with the equal protection laws as laid down in the contitution.

It was the court's judgment that the law is not consistent with the constitution, hence the law has been struck down. 

The constitution has not been changed, which is why I disagreed with WN's characterization of "an activist judiciary"

[kban1]

ssl:
What makes it a "living document" - judicial interpretation over time OR legislative process.

My assumption is you will say, depends...and I would agree.

The US constitution has been a fairly stable document over time ..while Indian one has evolved in its short history through many amendments. I would rather, till our judiciary and the judicial process matures, rely on the legislative process than these judges .. because they are elected and have some semblance of  accountability to people.

Personally, I think the process around this ruling sets a dangerous precedent in our young and immature democracy.

Tomorrow, a bunch of judges in XYZ court can say that having a separate Hindu Family Law etc is against the principle of the equality of religion enshrined in our constitution..and out it goes.

Next comes a tit for tat from another bunch of judges in another court about Islamic Family Law etc..

..and we will have a mess on our hands.

BTW, for the record, I favor a Uniform Civil Code in India.. but we all know that the time to implement that was when the constitution was framed and now it is perhaps too late!

unfortunately, what is missing in this is that the law in question is a relic of British india. It predates the constitution.

Which is why (when brought up before the courts), it is perfectly ok for the courts to determine constitutional consistency.

Also, there is a significant difference between the constitution of India and that of the US.

The US constitution was written (on purpose) in brief, touching on the main points while leaving the courts to interpret the vast amount of minutiae that arises from the broad principles discussed. This explains the relatively fewer amendments over time.

The Indian constitution on the other hand, was explicitly meant to be detailed (on purpose), which is exactly why the constituion is an involved and a lengthy document, and precisely why several amendments to it have been enacted,

This has no coorelation with immature democracy or immature judiciary, even if your points about the maturity of our judiciary and democracy are true in isolation.

However, irrespective of their brevity or lack thereof, interpretation of both constitutions as well as the consistency between the constitution and laws of the land has been and remains the responsibility of the judiciary.

[ruchir]

Pitamah -

Yes, I realized that Indian Penal Code is an independent document, not a part of Indian Constitution.

[WicketView]

Any clarifications on my question?
http://www.cricketvoice.com/cricketforum2/index.php/topic,21299.msg283026.html#msg283026

[kban1]

Any clarifications on my question?
http://www.cricketvoice.com/cricketforum2/index.php/topic,21299.msg283026.html#msg283026

my apologies, I missed that.

I actually dont know the detailed judgment and have not read either the full judgment or a detailed analysis of it. So, not sure if the judgment disagreed with the "natural / unnatural order" concept.

I suspect, and this is purely conjecture based on prior readings -- chances are the court will not comment on the specifics of the law or its contents, but rather just declare that the law and its intent clashes with the constitution.