Appeals court in India strikes down sodomy law
In a first for India, the Delhi High Court ruled today in Naz Foundation v Government of Delhi that Indian Penal Code Section 377, a law prohibiting sodomy, is unconstitutional as violative of privacy and equality rights. Plaintiff in the case was an AIDS service organization. The government must now decide whether to appeal to the national supreme court or to accept the decision. In briefs before the court, different agencies within the government split on whether to defend the law. The court responded by requiring scientific evidence to support arguments that the law served a public purpose.
CLARIFICATION: Rex Wockner, who first reported that the decision had come down, has a new post, citing several Indian sources, stating that the ruling will apply to all of India until and unless it is appealed to the Supreme Court and reversed.
A brief excerpt from the 105-page decision:
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 . . . .
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 antithesis 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....
Does anyone know how the major Indian parties are splitting on this? It's been years since I've kept up on Indian politics -- once a hobby of mine -- but I wouldn't be surprised if the religious/Traditionalist BJP actually had less problem with it than the secular but timid Congress Party.
Posted by: Prup (aka Jim Benton) | July 02, 2009 at 01:50 PM