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.
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.
O’Connor got it right.
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.
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.
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?
“Why Supreme Court’s verdict on Section 377 is wrong’”
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.
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. This is found in Order XL of the Indian Supreme Court Rules. 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.
I’m not following what you’re saying here. How is it a circular argument?
So, as I understand it, the basic legal argument for why they got it wrong are these:
-
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.”).
-
The court says it should be deferential to the will of parliament. But sometimes it isn’t.
-
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).
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.
Does Indian constitutional jurisprudence recognize that a law may be “unconstitutional as applied”?
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.
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.)
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.