[Reader-list] High Court to Abolish Section 377 IPC (Anti-Sodomy) ?
Jeebesh
jeebesh at sarai.net
Thu Jul 2 17:29:13 IST 2009
Here is the conclusion section of the judgement.
CONCLUSION
129. The notion of equality in the Indian Constitution flows from
the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru
on December 13, 1946. Nehru, in his speech, moving this
Resolution wished that the House should consider the
Resolution not in a spirit of narrow legal wording, but rather
look at the spirit behind that Resolution. He said, ”Words are
magic things often enough, but even the magic of words
sometimes cannot convey the magic of the human spirit and
of a Nation’s passion…….. (The Resolution) seeks very
feebly to tell the world of what we have thought or dreamt
of so long, and what we now hope to achieve in the near
future.” [Constituent Assembly Debates: Lok Sabha
Secretariat, New Delhi: 1999, Vol. I, pages 57-65].
130.If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that of
'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as “deviants' or
'different' are not on that score excluded or ostracised.
131. Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and non-
discrimination. This was the 'spirit behind the Resolution' of
which Nehru spoke so passionately. In our view, Indian
Constitutional law does not permit the statutory criminal law
to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is anti-
thesis of equality and that it is the recognition of equality
which will foster the dignity of every individual.
132.We declare that Section 377 IPC, insofar it criminalises
consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution. The provisions of
Section 377 IPC will continue to govern non-consensual
penile non-vaginal sex and penile non-vaginal sex involving
minors. By 'adult' we mean everyone who is 18 years of age
and above. A person below 18 would be presumed not to be
able to consent to a sexual act. This clarification will hold till,
of course, Parliament chooses to amend the law to
effectuate the recommendation of the Law Commission of
India in its 172nd Report which we believe removes a great
deal of confusion. Secondly, we clarify that our judgment
will not result in the re-opening of criminal cases involving
Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
CHIEF JUSTICE
S.MURALIDHAR, J
JULY 2, 2009
On 02-Jul-09, at 4:53 PM, Gautam Bhan wrote:
> Dear All,
>
> Just to quickly say that this judgment should be read closely by all
> movements. It has
> evoked the constitution in a spirit I have not seen in the recent
> past. See
> if
> nothing else, the last conclusions.
>
> For those of us who have been fighting this law for a decade,
> standing in
> the Court no 1
> this morning, tears flowing down our faces, it was also a reminder
> that
> somtimes fights
> end in days of victory. Sometimes things change.
>
> in solidarity,
> Gautam
>
> On Thu, Jul 2, 2009 at 4:49 PM, Aditya Raj Kaul <kauladityaraj at gmail.com
> >wrote:
>
>> *Full 105 page Judgement available at *-
>>
>> http://lobis.nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf
>>
>> thanks
>>
>> On Thu, Jul 2, 2009 at 4:36 PM, Jeebesh <jeebesh at sarai.net> wrote:
>>
>>> dear Aditya,
>>>
>>> It is an excellently argued judgement.
>>>
>>> The arguments on privacy in this judgement is i would guess a legal
>>> landmark.
>>>
>>> The petitioners and the team of lawyers and legal researchers had
>>> done
>>> immense work and shows in the quality of the judgement.
>>>
>>> warmly
>>> jeebesh
>>>
>>>
>>> On 02-Jul-09, at 4:21 PM, Aditya Raj Kaul wrote:
>>>
>>>> *Congratulations to the Gay Activists and their supporters on this
>>>> forum. *
>>>>
>>>> India court overturns ban on gay sex*Reuters*
>>>>
>>>> NEW DELHI (Reuters) - An Indian court Thursday ruled gay sex was
>>>> not a
>>>> crime, a verdict that will bolster demands by gay and health groups
>>>> that the
>>>> government scrap a British colonial law which bans homosexual
>>>> sex.*Link* -
>>>> http://in.reuters.com/article/lifestyleMolt/idINTRE5611VE20090702
>>>>
>>>>
>>>> On Thu, Jul 2, 2009 at 12:04 AM, Aditya Raj Kaul <
>>> kauladityaraj at gmail.com
>>>>> wrote:
>>>>
>>>>> Lord Macaulay wouldn't be smiling in his grave if this comes true.
>>>>>
>>>>> For Sarai list members - A rumour doing the rounds all day in
>>>>> media
>>>>> suggests that the High Court may abolish or at least pass a strong
>>>>> verdict
>>>>> against the Section 377 IPC.
>>>>>
>>>>> Some experts however say it wouldn't be that easy and the case
>>>>> might be
>>>>> immediately transferred to the Supreme Court.
>>>>>
>>>>> Hope this is helpful.
>>>>>
>>>>> thanks
>>>>> Aditya Raj Kaul
>>>>>
>>>>> *More from IANS*
>>>>>
>>>>> The verdict will be the first to be delivered by an Indian court
>>>>> on
>>>>> a 19th
>>>>> century law that treats homosexual activity as a criminal offence.
>>>>>
>>>>> The petitioners, including voluntary organisation Naz Foundation,
>>>>> pleaded
>>>>> that the criminal provision against homosexual behaviour should be
>>>>> scrapped
>>>>> for consenting adults who indulge in such acts in private.
>>>>>
>>>>> The petition said that Section 377 of the Indian Penal Code
>>>>> (IPC) is
>>>>> violative of their fundamental right.
>>>>>
>>>>> Section 377 of the IPC says an individual who “voluntarily has
>>>>> carnal
>>>>> intercourse against the order of nature with any man, woman or
>>>>> animal” shall
>>>>> be imprisoned for life or for a term exceeding 10 years and be
>>>>> liable to pay
>>>>> a fine.
>>>>>
>>>>> During the course of the proceedings, the health ministry and the
>>>>> home
>>>>> ministry, respondents to the petition, were divided in their
>>>>> opinion, with
>>>>> the health ministry’s affidavit supporting the petitioners and the
>>>>> home
>>>>> ministry opposing decriminalization of same-sex activity saying
>>>>> such
>>>>> behaviour was immoral and could not be allowed in Indian society.
>>>>>
>>>>>
>>>>
>>>>
>>>> --
>>>> Aditya Raj Kaul
>>>>
>>>> Freelance Correspondent, The Times of India
>>>> Cell - +91-9873297834
>>>>
>>>> Blog: http://activistsdiary.blogspot.com/
>>>> _________________________________________
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>>>
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>>
>>
>>
>>
>> --
>> Aditya Raj Kaul
>>
>> Freelance Correspondent, The Times of India
>> Cell - +91-9873297834
>>
>> Blog: http://activistsdiary.blogspot.com/
>> _________________________________________
>> reader-list: an open discussion list on media and the city.
>> Critiques & Collaborations
>> To subscribe: send an email to reader-list-request at sarai.net with
>> subscribe in the subject header.
>> To unsubscribe: https://mail.sarai.net/mailman/listinfo/reader-list
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>>
>
>
>
> --
> ___________
>
> I write at: www.kafila.org.
> _________________________________________
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