[Reader-list] Voices against HC Judgement emerge

[Ravi Agarwal]

Hi Lawrence,
This is very helpful, many thanks. It also means that the statements of
religions leaders that they will not permit entry to religious places on the
basis of sexual orientation as illegal under this judgement, I suppose.
Hence is the angst amongst them not only about reading down 377 but also its
other implications? If this be the case can it be that the SC agrees partly
with the judgement in the matter of criminality but may disagree
(theoretically) on other interpretations? Or does one flow into the other
and cannot be read separately, since the logic is progressive?

best
ravi
On Sat, Jul 4, 2009 at 5:37 PM, Lawrence Liang <lawrence at altlawforum.org>wrote:

>
>
> Hi Ravi
>
>
> I think the best example of the difference would be respect to sex
> work or regulation of drugs such as marijuana; We could decriminalize
> the use of marijuana in which case personal possession and use would
> no longer be  punishable but there could still be regulations on sale/
> prohibition on use in public spaces etc. On the other hand it could be
> like Amsterdam where it is legalised, and you can sell/ smoke up
> anywhere etc.
>
> Though the larger point to make with respect to the Delhi high court
> judgment is that while everyone has been reading it is a judgment that
> 'merely' decriminalizes homosexuality by reading down 377, I think it
> would a be a disservice to the imagination of Justice Shah and
> Muralidhar. If you adopt a narrow technical reading of the judgment
> and its  immediate impact then it is right to say it decriminalizes
> homosexuality.
>
> But if you read the judgment closely it does far more than that, and
> it opens out the space for the extension of all civil and political
> rights to sexuality minorities in the future. This is particularly
> true with respect to their interpretation of 'sexual orientation'
> being akin to sex in Art 15 of the constitution.
>
> If you see Para 105 of the judgment it states the following:
>
> 104.We hold that sexual orientation is a ground analogous to sex
> and that discrimination on the basis of sexual orientation is
> not permitted by Article 15.   Further,  Article 15(2)
> incorporates the notion of horizontal application of rights. In
> other words, it even prohibits discrimination of one citizen by
> another in matters of access to public spaces.  In our view,
> discrimination on the ground of sexual  orientation is
> impermissible even on the horizontal application of the right
> enshrined under Article 15.
>
>
> If you read the para it would be hard to maintain that the judgment is
> merely about decriminalization of homosexuality, and it should
> necessarily be read as extending all rights guaranteed  against
> discrimination to homosexuals as well
>
>
> Lawrence
>
>
>
> On 04-Jul-09, at 1:35 PM, Ravi Agarwal wrote:
>
> > Dear Mr Malik,
> >
> > Many thanks for your reply. My question is, if it is not criminal in
> > 377
> > then what does 'illegal' mean in practice? Where is it deemed
> > illegal, in
> > which law, and what are its implications?
> >
> > I understand that there may be no sanction for marriage, or that gay
> > partnerships may not qualify under various laws which sanction
> > partnerships,
> > or that of adoption etc., but is it the lack of rights to be
> > recognized as a
> > gay couple or is it something more?
> >
> > Also the limited plea was to make decriminalize under 377, which has
> > been
> > achieved by the HC Judgment, so what further amendment is needed by
> > the
> > Govt.? Sorry am confused.  Where does 'legality' come in now?
> >
> > thanks
> > ravi
> >
> > On Sat, Jul 4, 2009 at 11:47 AM, A.K. Malik <akmalik45 at yahoo.com>
> > wrote:
> >
> >>
> >> Hi Mr Aggarwal,
> >>               I try to reply to your first point:
> >> Decriminalizing means something which was earlier criminal/illegal
> >> and has
> >> now been made non criminal usually by an action not enacted by law.
> >> Legalising would mean making something legal by law enacted by an
> >> act of
> >> Parliament.In the current HC order scenerio means while this
> >> section in the
> >> statute makes it still illegal/criminal, no crimnal action can be
> >> initiated
> >> in view of the HC order.If this section is upheld by the SC, it again
> >> becomes illegal.While an enactment by Parliament making it legal
> >> means there
> >> is no requirement of a  court order as per se no criminal action
> >> can at all
> >> be initiated.
> >> Regards
> >> (A.K.MALIK)
> >>
> >>
> >> --- On Sat, 7/4/09, Ravi Agarwal <ravig64 at gmail.com> wrote:
> >>
> >>> From: Ravi Agarwal <ravig64 at gmail.com>
> >>> Subject: Re: [Reader-list] Voices against HC Judgement emerge
> >>> To: "Rakesh Iyer" <rakesh.rnbdj at gmail.com>
> >>> Cc: "sarai list" <reader-list at sarai.net>
> >>> Date: Saturday, July 4, 2009, 5:56 AM
> >>> Dear all,
> >>> I shall be grateful if someone can explain to me:
> >>> 1. Difference between 'de criminalizing ' and 'legalising?
> >>> 2. Now that the HC has read down 377, what is the amendment
> >>> required by the
> >>> Govt? except to shift the remaining provisions under 377 to
> >>> another place as
> >>> suggested by the HC order itself.  But will this
> >>> impact the provision struck
> >>> down.
> >>> 3. I understand the SC can strike down the HC order (which
> >>> is very strongly
> >>> argued and hence not easy to strike down, I think.) But
> >>> beyond going to the
> >>> SC what is the govt reqired to do?
> >>>
> >>> I will thank you for some clear understanding to help me.
> >>>
> >>> Best
> >>> ravi agarwal
> >>>
> >>>
> >>>
> >>>
> >>> On Sat, Jul 4, 2009 at 4:09 AM, Rakesh Iyer <rakesh.rnbdj at gmail.com>
> >>> wrote:
> >>>
> >>>> Religious leaders have no right to threaten govts.
> >>> Anyway, who cares about
> >>>> these. I feel we should have a referendum to find out
> >>> whether these
> >>>> so-called hoodlums have any backing from the society,
> >>> for that will be the
> >>>> end of their useless positions and their right to take
> >>> 'decisions on behalf
> >>>> of the community'. The religious leaders should first
> >>> go and study their
> >>>> own
> >>>> religious texts and books before making useless
> >>> comments. And anyways,
> >>>> religious leaders should be thankful we are a liberal
> >>> democracy, otherwise
> >>>> if we were secular by Western standards, their useless
> >>> antics would have
> >>>> earned them the ire of the state (as Sarkozy showed
> >>> recently by declaring
> >>>> that Muslim women would not be allowed to wear the
> >>> veil. Where are these
> >>>> leaders then to raise their voice? In toilets?)
> >>>>
> >>>> The right to existence of people is beyond religion,
> >>> and people came before
> >>>> religion. And people's rights are more important than
> >>> such religious
> >>>> rights.
> >>>> Therefore, the govt. has the responsibility to accept
> >>> this HC verdict and
> >>>> annul the IPC 377 which prohibits homosexuality. And
> >>> if the govt. wants to
> >>>> appease the religious leaders, they should remember
> >>> the 1987 scenario, when
> >>>> both the Muslim and Hindu communities were sought to
> >>> be appeased, and what
> >>>> happened after that.
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> >>
> >>
> >>
> >>
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