# Supreme Court of India restores gay sex ban. **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [December 11, 2013, 1:15pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065 "2013-12-11T13:15:51Z")\ **Posts on this page:** 17\ **Page:** 2
**Author:** ![truthSeeker2](https://avatars.discourse-cdn.com/v4/letter/t/7cd45c/32.png) [@truthSeeker2](https://boards.straightdope.com/u/truthSeeker2)\ **Post date:** [December 16, 2013, 3:20pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/21 "2013-12-16T15:20:33Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It would be a bad bet. You know the review will be conducted by _the same court which issued the decision in the first place_, right? highly safe bet imho:) The verdict has been severely criticized across media, called regressive, primitive etc. Protests and lots of discussion have happened. also, i hear it was the last verdict of one of the 2 judges of the panel. So 1 judge will also be new. Its a minor point but still. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [December 16, 2013, 3:38pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/22 "2013-12-16T15:38:30Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Out of curiosity, do you think _Lawrence v. Texas_ was wrongly decided? Not really analogous. Ss377 IPC 1861 was and is much broader than just homosexual sodomy. It is more or less obsolete for the purposes of criminalising gay sex in both India and Pakistan, but is used a lot for child abuse/molestation and to prosecute various non consensual sexual acts which do not come under any other heading. The fact that it is broad is a feature not a bug. Unfortunately this “feature” has the sideffect of making it very difficult to read down, without legislating from the bench. Now if had said “anal sex is forbidden”, the Courts could have conceivably struck it down on constitutional grounds, or read down by stating that the legislature could not have intended to mean consensual sex. However, the section says acts against nature, which has been interpreted consistently to mean acts which a reasonable person would regard as abhorrent. You cannot strike that down on constitutional grounds. India (and every other country) regards certain sex acts as beyond the pale. The section (probably deliberately) gives great leeway to a Court in deciding whether a particular act is infact under ambit of the section. While, that assists a Court in dealing with inevitable change in social mores, it can inly create general exceptions. Not a specific exception like the one the HCoD was attempting to do, which was consenting over 18’s in private. That is legislating from the bench and is properly a decision for Parliament. Edited to add: **truthSeeker2** A review petition of the SCI is limited to “an error on apparent on the face of the record”. 99% of them are dismissed. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 16, 2013, 3:54pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/23 "2013-12-16T15:54:37Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Out of curiosity, do you think _Lawrence v. Texas_ was wrongly decided? O’Connor got it right. > [@AK84](#): > > Not really analogous. Ss377 IPC 1861 was and is much broader than just homosexual sodomy. It is more or less obsolete for the purposes of criminalising gay sex in both India and Pakistan, but is used a lot for child abuse/molestation and to prosecute various non consensual sexual acts which do not come under any other heading. The fact that it is broad is a feature not a bug. Unfortunately this “feature” has the sideffect of making it very difficult to read down, without legislating from the bench. Now if had said “anal sex is forbidden”, the Courts could have conceivably struck it down on constitutional grounds, or read down by stating that the legislature could not have intended to mean consensual sex. > > However, the section says acts against nature, which has been interpreted consistently to mean acts which a reasonable person would regard as abhorrent. You cannot strike that down on constitutional grounds. India (and every other country) regards certain sex acts as beyond the pale. The section (probably deliberately) gives great leeway to a Court in deciding whether a particular act is infact under ambit of the section. While, that assists a Court in dealing with inevitable change in social mores, it can inly create general exceptions. Not a specific exception like the one the HCoD was attempting to do, which was consenting over 18’s in private. That is legislating from the bench and is properly a decision for Parliament. Does India have any sort of “void for vagueness” doctrine? It would seem to me that the statute fails to provide reasonable notice of what it outlawed, especially if the idea is that the moral limits of appropriate sexual behavior might change over time. It seems problematic to have a criminal statute that “gives great leeway” as to whether something is a crime. Especially, if it contemplates shifting social mores. ---
**Author:** ![truthSeeker2](https://avatars.discourse-cdn.com/v4/letter/t/7cd45c/32.png) [@truthSeeker2](https://boards.straightdope.com/u/truthSeeker2)\ **Post date:** [December 16, 2013, 3:57pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/24 "2013-12-16T15:57:13Z")
i know ak84, and yet we will get favorable judgement . the gov many strong voices the lgbt comm. the world wants it. the judgement has been severely criticised. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 16, 2013, 4:04pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/25 "2013-12-16T16:04:39Z")
> [@truthSeeker2](#): > > i know ak84, and yet we will get favorable judgement . the gov many strong voices the lgbt comm. the world wants it. the judgement has been severely criticised. Is that how it works? A court hands down a ruling and if “the gov” and “the world” criticize it, they just change their mind? Here, I always get the sense that the more controversial a decision is the more obstinate the deciding judges get about it. ---
**Author:** ![truthSeeker2](https://avatars.discourse-cdn.com/v4/letter/t/7cd45c/32.png) [@truthSeeker2](https://boards.straightdope.com/u/truthSeeker2)\ **Post date:** [December 16, 2013, 4:42pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/26 "2013-12-16T16:42:18Z")
> [@Falchion](#): > > Is that how neworks? A court hands down a ruling and if “the gov” and “the world” criticize it, they just change their mind? Here, I always get the sense that the more controversial a decision is the more obstinate the deciding judges get about it. No they realise that changed judgement would be better for society and at the same time be equally correct and justifiable legally. I can write a long essay on how the new judgment will be vastly better for society (n be legally viable at the same time). Like I said, most people here would be expecting a change in verdict from review petition. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 16, 2013, 4:54pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/27 "2013-12-16T16:54:06Z")
> [@truthSeeker2](#): > > No they realise that changed judgement would be better for society and at the same time be equally correct and justifiable legally. > > I can write a long essay on how the new judgment will be vastly better for society (n be legally viable at the same time). > > Like I said, most people here would be expecting a change in verdict from review petition. Leave aside whether or not “better for society” is a coherent principle for appellate review, if **AK84** is correct that this review petition is limited to “an error on apparent on the face of the record,” and you think that the court’s opinion is “equally correct and justifiable” as one producing your desired outcome, how can that possibly be “error”? Is this procedure typically used to just arbitrarily change the court’s mind based on political pressures? ---
**Author:** ![truthSeeker2](https://avatars.discourse-cdn.com/v4/letter/t/7cd45c/32.png) [@truthSeeker2](https://boards.straightdope.com/u/truthSeeker2)\ **Post date:** [December 16, 2013, 5:09pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/28 "2013-12-16T17:09:19Z")
> [@](#): > > the main challenge to the law from Article 21 (which guarantees right to life and personal liberty) protecting intimate sexual relations between consenting adults in private from intrusion from state legislation has not been considered by the Supreme Court at all. The court has also overlooked the challenge from Articles 14 and 15 of the Constitution which guarantees equality and prohibits discrimination on grounds of religion, race, caste, sex or place of birth. > > In such a challenge, the defendant state is obliged to sustain the validity, to show firstly that the division of the population into classes is based on rational or intelligible grounds and secondly these grounds should have a rational relationship to the object the law seeks to achieve. The Supreme Court says there is a clear difference between carnal intercourse within the order of nature and against the order of nature. That is only the first limb of the argument on Article 14 and 15. The second part of the argument has not been dealt with at all. > > We had argued that though Section 377 is ostensibly neutral, it has targeted gay or transgender persons. > > The Supreme Court says the section does not mandate action against gay men but is only directed at acts. The court, however, does not appreciate that sexual acts covered under Section 377 are intimately linked to the sexuality and sexual expression of gay men. Shockingly, the Supreme Court tells the LGBT community that they are not entitled to fundamental rights because they are a minuscule minority. How can one countenance such thinking, more so from the apex court of the country? Take for instance a place like Mumbai where there are so many minority groups, including different groups of Brahmins, Parsis, Khojas and different sects of Bohras. Can we tell them they are not entitled to fundamental rights because they are a minority? > > Misuse of law is not a reason for striking down the law. Say, the court is bent on sticking to this rationale, it should have considered that the misuse is inherent in the application of 377. > > Another reasoning of Supreme Court for setting aside the Delhi High Court judgement is that it should be deferential to parliament’s will and exercise judicial restraint. This sounds strange coming from a court that has struck down constitutional amendments like no other in the world. It is this very court that entered the sphere of policy (2G case) and on issues that don’t invoke fundamental rights (Lal Bati case). > > The other reason is the presumption of constitutional validity of the statute. The court seems to have overlooked that the high court had held that section 377 is invalid and the government had not filed an appeal. Therefore the presumption does not hold at all. The judgement has sent us back to the medieval ages. The judgement has, in one stroke, criminalized the lives of millions of citizens of our country. It is a blot on the annals of the Supreme Court. The court must rectify its decision with no delay “Why Supreme Court’s verdict on Section 377 is wrong’” > **[Why Supreme Court's verdict on Section 377 is wrong](https://economictimes.indiatimes.com/news/politics-and-nation/why-supreme-courts-verdict-on-section-377-is-wrong/articleshow/27374137.cms?from=mdr)** > > SC has actually told the LGBT community that they are second-class citizens; they cannot exercise freedom expressing the core of their personality.. ---
**Author:** ![truthSeeker2](https://avatars.discourse-cdn.com/v4/letter/t/7cd45c/32.png) [@truthSeeker2](https://boards.straightdope.com/u/truthSeeker2)\ **Post date:** [December 16, 2013, 5:17pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/29 "2013-12-16T17:17:15Z")
These are purely legal arguments of course. I haven’t even gone into the human aspect of it. The harassment ridicule trouble distress exploitation the LGBTs have to undergo due to lack of law and favorable judgments. Like Isaid , long essay can be written on it. Rome isn’t gonna be built in a day it will surely be a step in right direction help fight dogma, a social stigma associated with homosexuality. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [December 16, 2013, 5:33pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/30 "2013-12-16T17:33:35Z")
Well, the person who you cited is the Counsel for the defeated party, so not exactly an unbiased source. **Falchion** , the remedy that is being proposed is not Appellate review. It is review of the judgement by the same court, the same bench. This is functionally the same as the Petition for [rehearing in the SCOTUS](http://www.law.cornell.edu/rules/supct/rule_44). This is found in [Order XL of the Indian Supreme Court Rules](http://llbl.webs.com/Files/rulespdf.pdf). These are almost always dismissed without comment. This is a safety net, to allow a COurt to correct blatant errors. Like 2 + 2=5 type errors. Not to revisit arguments. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [December 16, 2013, 5:42pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/31 "2013-12-16T17:42:26Z")
> [@truthSeeker2](#): > > 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. I’m not following what you’re saying here. How is it a circular argument? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 16, 2013, 6:07pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/32 "2013-12-16T18:07:28Z")
> [@truthSeeker2](#): > > “Why Supreme Court’s verdict on Section 377 is wrong’” > > [Why Supreme Court's verdict on Section 377 is wrong - The Economic Times](http://m.economictimes.com/news/politics-and-nation/why-supreme-courts-verdict-on-section-377-is-wrong/articleshow/27374137.cms) So, as I understand it, the basic legal argument for why they got it wrong are these: 1. The court did not pay appropriate attention to their argument that although the law appears to be facially neutral (prohibiting some sex acts that we want to keep prohibited and prohibiting a wide swath of sex acts that we probably don’t want prohibited; but not textually discriminating on an impermissible basis), it is either being enforced only against homosexuals or the stigma of criminality only affects homosexuals (I can’t tell which). (I guess the argument is that by outlawing all non-penis/vagina sex, it criminalizes all gay sex but provides a legal form of heterosexual sexual release?). (I understand that they’re saying there’s a two-prong test: clear division and rational purpose. And that the court didn’t properly handle prong 2. But really, once you say there’s a clear distinction between “within the order of nature” and “against the order of nature,” you’re going to lose on prong 2 as well. Since, I assume, the object of the law is: “banning things against the order of nature.”). 2. The court says it should be deferential to the will of parliament. But sometimes it isn’t. 3. The court applied a presumption of constitutionality, but it doesn’t apply situations where a lower court has invalidated a statute and (or?) the government does not appeal. Only number 3 strikes me as a claim of legal error. The losing party thinks that the court got the merits of the claim wrong and was unsatisfied with the reasoning. That’s not uncommon. They think that the court is selectively deferential to the will of parliament (this appears to be a necessary problem with having courts and parliaments). Number 3 might be an error (but it seems odd to me that it would be right). > [@AK84](#): > > **Falchion** , the remedy that is being proposed is not Appellate review. It is review of the judgement by the same court, the same bench. This is functionally the same as the Petition for [rehearing in the SCOTUS](http://www.law.cornell.edu/rules/supct/rule_44). This is found in [Order XL of the Indian Supreme Court Rules](http://llbl.webs.com/Files/rulespdf.pdf). These are almost always dismissed without comment. This is a safety net, to allow a COurt to correct blatant errors. Like 2 + 2=5 type errors. Not to revisit arguments. Yeah, I get what it is. On the other hand, how cool would it be to win by invoking the extra-large order? I’d be more interested in whether or not India has a vagueness doctrine (am I correct in assuming that you are an Indian lawyer? Or am I just imputing an unfair amount of knowledge to you)? That’s my problem with the statute. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 16, 2013, 6:13pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/33 "2013-12-16T18:13:10Z")
> [@AK84](#): > > Not really analogous. Ss377 IPC 1861 was and is much broader than just homosexual sodomy. It is more or less obsolete for the purposes of criminalising gay sex in both India and Pakistan, but is used a lot for child abuse/molestation and to prosecute various non consensual sexual acts which do not come under any other heading. The fact that it is broad is a feature not a bug. Unfortunately this “feature” has the sideffect of making it very difficult to read down, without legislating from the bench. Now if had said “anal sex is forbidden”, the Courts could have conceivably struck it down on constitutional grounds, or read down by stating that the legislature could not have intended to mean consensual sex. Does Indian constitutional jurisprudence recognize that a law may be “unconstitutional as applied”? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [December 16, 2013, 7:24pm UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/34 "2013-12-16T19:24:27Z")
**Falchion** , I am a Pakistani lawyer, but the legal systems of both countries descend from the laws of British India, lots of the substantive law is identical, including the provision in question (pre 1947 caselaw of one country is still binding in the other). They do have a vaguness doctrine, but over here, the SCI felt it did not apply, chiefly due to the copious amounts of caselaw that exists. [QUOTE=Really Not All That Bright] Does Indian constitutional jurisprudence recognize that a law may be “unconstitutional as applied”? [/QUOTE] Yes they do. They have narrower grounds than the US does IIRC, The distinction between facial challenge and as applied is blurred. I ts past midnight here. Tommorrow, I’ll give you a clearer picture. ---
**Author:** ![truthSeeker2](https://avatars.discourse-cdn.com/v4/letter/t/7cd45c/32.png) [@truthSeeker2](https://boards.straightdope.com/u/truthSeeker2)\ **Post date:** [December 17, 2013, 2:07am UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/35 "2013-12-17T02:07:01Z")
> [@Little\_Nemo](#): > > I’m not following what you’re saying here. How is it a circular argument? People are giving article 377’s argument. I am giving Scientific, factual arg. that homosexuality is NOT unnatural since it exists in 200 animal species too. Plus given the human rights arguments. Plus the gov. itself hasn’t challenged Delhi HC judgment from 4 yrs back where it sets aside 377. Both yours and my arguments are legally viable. So, repeated discussion is a circular one. The thing is - if India has ~3.8% LGBT like the US, thats means 40-50 million people. You got to do whats important for so many people in the society. People here are discussing nitty-gritty of law. I am saying once the judge in this case will **know whats the right thing to do** , legal ways/arguments to do the same are always available/can be found. (I am saying this knowing that the ways/grounds of this judgment could be used/cited in other different cases in future.) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 17, 2013, 3:08am UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/36 "2013-12-17T03:08:33Z")
> [@truthSeeker2](#): > > I am saying once the judge in this case will **know whats the right thing to do** , legal ways/arguments to do the same are always available/can be found. (I am saying this knowing that the ways/grounds of this judgment could be used/cited in other different cases in future.) That’s an awfully dangerous precedent. What if the court decides The Right Thing To Do is to exterminate all homosexuals immediately? ---
**Author:** ![truthSeeker2](https://avatars.discourse-cdn.com/v4/letter/t/7cd45c/32.png) [@truthSeeker2](https://boards.straightdope.com/u/truthSeeker2)\ **Post date:** [December 17, 2013, 3:21am UTC](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065/37 "2013-12-17T03:21:42Z")
> [@Really\_Not\_All\_That\_Bright](#): > > That’s an awfully dangerous precedent. What if the court decides The Right Thing To Do is to exterminate all homosexuals immediately? Well Not really. I would promote this for sure for future as well. Science and facts say 2+2=4 or Homosexuality is not unnatural. 377 says 2+2=5 or Homosexuality is unnatural. In such case, where a law contradicts science/facts and where lives of 40-50 million are to be impacted, science should definitely be given precedence. [Previous page](https://boards.straightdope.com/t/supreme-court-of-india-restores-gay-sex-ban/676065.md?page=1)