Reading it, I see they have basically passed the ball to Parliament. It is true that the High Court’s decision was more or less unsupportable, but I really wish they had simply refused leave to appeal and been done with it. That would probably have been better for all concerned.
Interesting how closely Indian constitutional jurisprudence mirrors what we have in America. I’m a little shocked by how much attention both the High Court and Supreme Court paid to decisions in foreign jurisdictions, though.
Unlike you, I don’t think the High Court’s decision is unsupportable. Based on the excerpts in the Supreme Court’s judgment, it seems very well thought out.
Is there any indication that the legislature will act on this invitation?
I do disagree. The operative part of the High Court of Delhi judgement (I did read it when it was issued four years ago, but I do not have it now) was a straight forward example of legislating from the bench. If this had been not been such a notorious and charged case, they would have issued a summery reversal just on that. The High Court did not just put forth a new interpretation or read down the statute , they added new language to it. Specifically they stated that i) Ss377 IPC would not apply to consensual adult encounters ii) That sex with minors would still be verboten, setting minors as being below 18 (in a country where the age of consent is otherwise 16) and iii) this would apply only to new prosecution. The last two especially are a clear usurpation of Parliaments power. While the intentions of the High Court were laudable, they judgment was defective.
I don’t know Indian politics that well, but since an election is due next year, I have my doubts about new legislation.
wrong decision since it voilates human rights . supreme courts primary job is to protect them. ofcourse it will be challenged n reversed coz LGBTs are natural not unnatural.
thts for now. later( will take lots of time ) 377 will be changed too.
Challenged? Where? The Supreme Court of India is final.
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I would have thought you’d prefer that limited remedy to disposing of the statute in its entirety.
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Reading down would have been better for the HCD to do. But, they were constrained by earlier SCI precedent and more to the point, they added language to it rather than simply dis-apply it to the single situation at hand.
What will happen is, the decision will be reversed on the grounds that I mentioned.
But 377 wont be repealed for atleast 10 yrs, coz there’s educated liberals in India and there’s also homophobic, orthodox, illiterate people and parliament is the reflection of the society. Many parliamentarians may fear they might lose their vote banks.
Negligible number of people have been arrest under 377 and i guess zero has been ever convicted under it. But its NOT about the number of arrests made under article 377. Favorable laws and judgements help fight social stigma.
well done to you and RNTB for discussing this important issue.
IANAL, but I always understood the purpose of a supreme court was to ensure that the edicts of executive bodies and judgments of lower courts followed the rule of law, i.e. they make decisions about whether laws are constitutional (whatever the contents of the constitution may be), and whether a lower court has exceeded the legal bounds of its authority.
This certainly appears to be the case with the present subject.
It goes against the fundamental right to equality(read my earlier posts). Delhi HC had used this justification while setting aside 377. The SC could have upheld Delhi HC while at the same time instructing the government to move an amendment. It has been 4 years since the Delhi HC order.
Consenting adults should not have to go to prison for what they do in the privacy of their bedrooms.
IANAL: I am not a Lawyer. (I infact am and so is RNATB).
truthSeeker2, these are social and moral questions. Best decided at the ballot box not in the Courtroom. I do think many people have seen the whole Roe v Wade controversy in the US and frankly these are issues which are best for a legislature.
Gay marriage got greater traction when they focused on changing laws and attitudes rather than going by the judicial route.
The thing is - legislature wont respond favorably till 10-15 years. SC has solid irrefutable scientific and human rights grounds as well as examples throughout the world(in diff nations) to follow. So they have proper legal grounds to rule favorably.
Of course i understand you gave it just as an example but - Gay marriage is different and incomparable with this issue coz we are only talking about gay relationship.
Unless the Supreme Court of India has much broader powers than other constitutional courts, it has no authority to “instruct” the government to pass legislation. All it can do is say, “this is a matter for the legislature to decide, not us” and hope they do.
its a circular argument issue you support sc verdict i support hc verdict. both are constitutional n both are not too.
i guess most people here would bet on sc judgements reversal on review petition.
