The Delhi High Court has held unconstitutional a colonial-era law that provides: “Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The law was originally understood to forbid any non-procreative sex, including heterosexual sex, but has been used mainly by police and others to harass, intimidate, and threaten gays and lesbians in the country. You can download the decision in PDF format in the main story on the decision for the Times of India, here, where you’ll also find numerous related stories giving reactions from gay groups, religious leaders, and legislators.
The decision is subject to review by the Supreme Court of India, but most observers expect it to stand.
The Delhi court held that the law violates fundamental constitutional rights to privacy and liberty, and denies equality to gays and lesbians. Sound familiar? The court cited Lawrence v. Texas, among many other recent foreign decisions, and quoted extensively from Justice Kennedy’s majority opinion. The final paragraphs of the opinion, though referring to India’s own constitutional history, resonate with Justice Kennedy’s similar conclusion that constitutional protection of liberty and due process are self-consciously spacious concepts that shouldn’t be limited to the specific expectations of one age or one set of people:
The notion of equality in the Indian Constitution flows from
the
Soronel Haetir says:
So do any more specific beastiality laws survive?
July 2, 2009, 11:17 amHannibal Lector says:
Cows will retain their traditional protection from all forms of harrasment.
July 2, 2009, 11:31 amrosetta's stones says:
Don’t get rid of those dusty old laws just yet. They may be able to use them in SC to get rid of that insufferably blabbering narcissist governor.
Great cartoon the other day, entitled: “SOTOMAYOR APPLAUDS WISE LATINA SELECTION!”
July 2, 2009, 11:41 amRPT says:
RS:
Are you criticizing Gov. Sanford, the leading anti-stimulus conservative? Isn’t he a feature, not a bug?
July 2, 2009, 11:53 amruuffles says:
You didn’t give a link, but I hope it didn’t use the bizarre hybrid caricature NR used in their previous cover.
cover
July 2, 2009, 11:53 amRandy R. says:
I just attended a lecture on ancient Indian art the other day. The professor took all these pictures of statues dating back hundreds of years, and he wanted to show us all the ones of men having sex with animals, and committing sodomy on men and women. These statues are not hidden in a dank cave, but are out in the open for everyone to see, and usually on temples.
Seems that sodomy and bestiality is a time honored tradition in India.
July 2, 2009, 11:59 amRandy R. says:
sorry — I don’t know how I double posted!
July 2, 2009, 11:59 amCJColucci says:
How dare the Delhi High Court cite foreign law!
July 2, 2009, 12:10 pmOrtsacras says:
The professor took all these pictures of statues dating back hundreds of years, and he wanted to show us all the ones of men having sex with animals, and committing sodomy on men and women. These statues are not hidden in a dank cave, but are out in the open for everyone to see, and usually on temples. Seems that sodomy and bestiality is a time honored tradition in India.
The other day I was in a Catholic church and saw a statute of a man nailed to a cross. Seems that crucifixion is a time honored tradition in Catholicism.
July 2, 2009, 12:17 pmEric Rasmusen says:
What does this decision mean, procedurally? Does it apply to more than just the Delhi district?
July 2, 2009, 12:36 pmDennisN says:
Now THAT’s some tough law!
[WHACK]
Owwww!
You’ve been hanging around legal discussion boards too long. ;-)
July 2, 2009, 12:39 pmWhadonna More says:
The old law seems out of character for the folks who wrote that famous sutra on the topic – the Brits must be to blame.
July 2, 2009, 1:31 pmmartinned says:
The first line of the OP says it is a colonial-era law, so I’m thinking yes.
To quote the OP:
July 2, 2009, 1:39 pmJaldhar says:
The Brits are are to blame for these laws. However that doesn’t mean Hindus consider them an imposition or were in any hurry to get rid of them. I would venture to say most of us consider homosexuality etc. to be disgusting and weird — just not a major sin or unnatural etc.
Oh and those carvings on temple walls? Notice they are on the outside. They represent the world of materialism and sensuality you are leaving by entering inside.
As a patriot I wouldn’t want anyone thinking prudery is a western import :-)
July 2, 2009, 1:46 pmRyan Waxx says:
Clearly, if Lawrence v. Texas had not been passed, the Delhi High Court would never have struck down this law and cited instead some other court to support the decision it already made.
/sarcasm
July 2, 2009, 2:10 pmRyan Waxx says:
Correction to above: If Lawrence v. Texas had not struck down the state sodomy law…
July 2, 2009, 2:11 pmOrtsacras says:
You’ve been hanging around legal discussion boards too long. ;-)
Good catch. This doesn’t excuse why it happened when I typed into the VC comment form, but I have Word autocorrect “statue” into “statute.”
July 2, 2009, 2:18 pmBene Israel says:
I was reading an article about the Republican Class of 1994 the other day. Seems adultery and sex scandals are a time honoured tradition for Republicans.
Ortsacras:
Most Catholics are not bigots.
July 2, 2009, 2:30 pmLatinist says:
God knows there’s plenty of ancient Greek and Roman art showing sex with just about anything you can think of.
July 2, 2009, 2:53 pmCJColucci says:
I would venture to say most of us consider homosexuality etc. to be disgusting and weird —
Who is this “us” of whom you speak?
July 2, 2009, 3:04 pmMaxwell Jump says:
Seems adultery and sex scandals are a time honoured tradition for
Republicanspoliticians.there, fixed it for ya
Of course, Republicans are the only ones held accountable for them, by their own party and the rest of the country.
July 2, 2009, 3:04 pm
CJColucci says:
Seems adultery and sex scandals are a time honoured tradition for Republicans politicians.
there, fixed it for ya
Of course, Republicans are the only ones held accountable for them, by their own party and the rest of the country.
When next you’re in Albany, say hello to Governor Spitzer for me.
July 2, 2009, 3:05 pmLosantiville says:
Do you have any evidence that 1.2 gigs of denizens of the subcontinent have actually committed sodomy? If so, what evidence?
July 2, 2009, 3:07 pmAlan Taylor says:
Quoting from the Indian court’s judgement: “The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone.”
Everyone that is except the Untouchables, also known as Dalits, who remain very much discriminated against in Indian society. While Dalits are legally equal, government agencies such as police and educational authorities do not provide equal service to Dalit populations.
July 2, 2009, 3:13 pmDavid Hardy says:
I don’t understand how this could be a British colonial-era law. I read somewhere that their House of Lords is the largest gay club in Europe.
July 2, 2009, 3:14 pmrick.felt says:
When next you’re in Albany, say hello to Governor Spitzer for me.
We’ll never know for sure, but Spitzer might have survived had his extramarital affair not been, you know, illegal.
July 2, 2009, 3:23 pmRix says:
How do they pick which international law gets cited? Perhaps they could have cited Saudi law, which specifies a punishment of execution in a particularly nasty fashion.
July 2, 2009, 3:27 pmThe Unbeliever says:
Sometimes, the Internet provides wonderfully random synergy:
July 2, 2009, 3:33 pmLocomotive Breath says:
One of my friends from India was once complaining about “Protestant prudery”. I pointed out to him that, given the levels of overpopulation in India, a little prudery in India might be a good thing.
July 2, 2009, 3:33 pmloki13 says:
When next you’re in Albany, say hello to Governor Spitzer for me.
We’ll never know for sure, but Spitzer might have survived had his extramarital affair not been, you know, illegal.
Fine, say hello to Senator Vitter in Louisana. Because
Republicans are the only ones held accountable for them, by their own party and the rest of the country.
(as an aside, this is silly. about a week ago, a commenter posted a link showing how much the level of discourse has gone down here in two years, mainly due to the reflxive, unthinking partisanship. i would have to agree. most of these threads have become downright painful, with their talk of obamatons and collectivism vs. the racist gop that will never be in the majority again… it just makes my head hurt.)
July 2, 2009, 3:38 pmBill Poser says:
While Jaldhar’s comment no doubt represents a widely held view in India today, it should be noted both that Hinduism is not a unitary doctrine but has many diverse variants and that Hindu thought has changed over time. One bit of evidence of this is the tradition of kamashastra, the “study of sexual desire”, of which the best known component in the west is the Kama Sutra, composed prior to the 7th century CE. This tradition is by no means prudish and contains works that give instruction in oral sex and gay sex. Current Hindu views of sexuality have been influenced in the direction of prudishness by Islam and especially by Victorian-era Christianity.
July 2, 2009, 3:39 pmmartinned says:
I pointed out to him that, given the levels of overpopulation in India, a little
July 2, 2009, 3:39 pmpruderybuggery in India might be a good thing.Oren says:
I think the statistics on what percentage of sexually active people engage in oral sex are pretty unequivocal that the answer is about 100%.
July 2, 2009, 4:12 pmruuffles says:
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Breakings news: adultery is still on the books in South Carolina.
July 2, 2009, 4:24 pmCJColucci says:
Breakings news: adultery is still on the books in South Carolina.
And in New York, as well.
July 2, 2009, 4:26 pmruuffles says:
Also, the SC law is worded in a weird way that doesn’t require the act to have occurred on SC soil.
July 2, 2009, 4:28 pmCJColucci says:
Also, the SC law is worded in a weird way that doesn’t require the act to have occurred on SC soil.
Isn’t there some Biblical reference to spilled seed and soil?
July 2, 2009, 4:40 pmWhadonna More says:
Unless you Hindus (I presume that’s the group you’re speaking for) have an alternate meaning for “against the order of nature” then it’s not just cross-species and same-sex sex that was outlawed.
July 2, 2009, 4:45 pmRandy R. says:
Jahldar: “Oh and those carvings on temple walls? Notice they are on the outside. They represent the world of materialism and sensuality you are leaving by entering inside. ”
And I would guess that once you have done all your praying and stuff in the temple, you go right back outside into the world of materialism and sensuality, right?
July 2, 2009, 4:47 pmRandy R. says:
Maxwell Jump: “Of course, Republicans are the only ones held accountable for them, by their own party and the rest of the country.”
Well, they should be. They claim that they alone can save and defend marriage. Too bad DOMA didn’t help Sanford’s marriage. Any guesses as to why not?
July 2, 2009, 4:50 pmJaldhar says:
CJColluci
“us” -> Hindus. Wasn’t that obvious?
Bill Poser
I’m glad you took Intro to Eastern Religions but the idea that India was some kind of free love paradise until the evil Abrahamics came along is just wishful thinking. For instance Kamashastra (the study of pleasure of all kinds, not just sexual btw) recommends monogamous marriage as the ideal relationship. The difference between the traditional and modern ethos is that the former didn’t criminalize deviant behavior. It was acknowledged that not everyone was going to be able to live up to the ideals and having to live as a filthy disgusting pervert is punishment enough. No need for the authorities or worthy citizens to get involved.
Whadonna More:
Granted. But in practice the laws were aimed against Gays and it was Gay rights groups who lobbied against them.
July 2, 2009, 5:19 pmLitigator-London says:
This judgment has also been posted on the BBC web site Indian Judgment on Gay Rights.
As CJ Colucci observes above, the Court relies heavily on the jurisprudence of other common law jurisdictions, not as binding precedent, but as persuasive authority. Note that this is a return visit – the petition for judicial review was first lodged in 2004, was dismissed and on appeal the Supreme Court remanded for reconsideration on the merits.
The Court also follows the “living constitution” approach of most of the Commonwealth jurisdictions.
July 2, 2009, 5:45 pmRandy R. says:
“It was acknowledged that not everyone was going to be able to live up to the ideals and having to live as a filthy disgusting pervert is punishment enough.”
Well, being gay is one punishment I just can’t get enough of!
July 2, 2009, 6:01 pmCJColucci says:
CJColluci
“us” -> Hindus. Wasn’t that obvious?
No.
July 2, 2009, 6:31 pmArthurKirkland says:
If there is a distinction between Gov. Sanford and former Gov. Spitzer, the lawfulness of the adultery probably isn’t it. I read a persuasive argument that Gov. Sanford’s adultery violated South Carolina law.
I have a hunch that still-Sen. Vitter’s adultery was unlawful, too.
The propriety of still-Sen. Ensign’s adultery might require a trial to determine.
From now on, every God-invoking, family values moralizer who excoriates another for moral failing should be asked, as the first question at the press conference, “Do you pledge without qualification to resign immediately if it develops that you have strayed from the moral standard you invoke today?”
The second question should be, “Can you then forecast, in approximate terms, when we should expect the revelation concerning your Argentinian soulmate/taste for prostitutes/public restroom incident/conquest of your friend’s spouse?”
July 2, 2009, 7:20 pmBill Poser says:
Jaldhar,
That is a gross misrepresentation of what I wrote. The business about a “free love paradise” is your invention. What I quite correctly said is that much of Hinduism has traditionally held a more liberal view than that of the current mainstream. While it is true that the Kama Sutra holds the ideal to be monogamous heterosexual marriage, it nonetheless treats of homosexual sex. Even today there are Hindu sects focussed on homosexuality such as the Aravani and the Hijra.
By the way, you presume too much in attributing my comments to “Intro to Eastern Religions”. Without claiming to be an authority on Eastern religion or going into detail, I will point out that not all Westerners have such a superficial knowledge. I have, for example, read the Bhagavad Gita in its entirely in the original Sanskrit.
July 2, 2009, 9:06 pmBill Poser says:
An additional point worth mention is that there is a large difference between considering homosexual relationships inferior to heterosexual marriage and considering homosexuality to be a crime. An excellent example is the traditional Chinese attitude. In Confucian thought homosexuality is regarded as unfortunate because homosexuals do not form normal (Confucian judgment, not mine) families and by not procreating did not carry out their duty to their ancestors. It was not, however, regarded as evil and in most periods was not a crime.
July 2, 2009, 9:12 pmRicardo says:
I think the statistics on what percentage of sexually active people engage in oral sex are pretty unequivocal that the answer is about 100%.
Not in India, though. In Delhi, I’m sure the proportion is higher than the rest of the country and increasing. But in rural India, the norm in many cases is for a girl to have “The Talk” with her mother a few days before her wedding night. Whatever liberal attitudes may have existed (and it’s not clear to me anyway whether these were the attitudes of just a decadent elite) in the distant past, India and north India in particular is only slightly more liberal than some conservative Muslim countries when it comes to sexual attitudes.
That said, this is a very good result. Delhi, like most big cities, has a gay community and sodomy laws only serve as a way for the corrupt Delhi police to harass this community.
July 2, 2009, 10:56 pmRandy R. says:
Bill: “I have, for example, read the Bhagavad Gita in its entirely in the original Sanskrit.”
That’s really going beyond the call of duty!
But isn’t it true that there is a homoerotic relationship at the heart of the epic?
July 2, 2009, 11:14 pmRandy R. says:
Regarding those statues in India — Sure, I understand there is a religious reason for them. But it would be hard to deny the porno aspect as well. You simply can’t have THAT many statues so clearly visible to one and all, doing such explicit and graphic sex acts, and not think that this was a form of porn disguised as moral teachings. Surely any young men or women would have stared at these in wonder.
It reminds me of those statues and paintings in the Victorian era of beautiful female greek slaves. The paintings were ostensibly an historical theme, but the women were too perfect (and bound with chains!) to be anything more than artsy porn at a time when real porn wasn’t easily available.
July 2, 2009, 11:18 pmRicardo says:
But isn’t it true that there is a homoerotic relationship at the heart of the epic?
Granted, I’ve had to settle for reading Bhagavad Gita in English, but no. It is a Socratic dialogue between Krishna and Arjuna on the eve of an epic battle on the nature of duty and fate.
July 2, 2009, 11:24 pmPsalm91 says:
Gov. Sanford, Sen. Ensign, Sen. Vitter, Sen. Craig, Speaker Gingrich, Party Chairman Limbaugh, humbled all.
July 2, 2009, 11:36 pmCornellian says:
From now on, every God-invoking, family values moralizer who excoriates another for moral failing should be asked, as the first question at the press conference, “Do you pledge without qualification to resign immediately if it develops that you have strayed from the moral standard you invoke today?”
These days, I take “family values Republican” to be another way of saying adulterer, closeted gay guy or perv.
July 2, 2009, 11:58 pmOren says:
Somewhat on-topic, did the Indian legal system inherit the British Common Law notion of desuetude? If so, was the law already unenforceable?
July 3, 2009, 12:57 amRicardo says:
Somewhat on-topic, did the Indian legal system inherit the British Common Law notion of desuetude? If so, was the law already unenforceable?
How does this square with the English case Ashford v. Thornton though? It’s not clear the UK ever took the concept seriously so there’s no reason why its former colonies would either. In practice, India embraces judicial activism to a much greater extent than the U.S. so the path of least resistance is to proclaim old, stupid laws to be unconstitutional rather than embrace a controversial and uncertain legal principle.
July 3, 2009, 3:07 amFC says:
Will American cultural imperialism never end?
July 3, 2009, 7:11 amOren says:
Ricardo, didn’t know about that decision.
July 3, 2009, 1:34 pmReaderY says:
The Framers of the U.S. constitution made a conscious decision not to give judges a general veto power over legislation they happened not to like. Review is limited to whether a law has a rational relationship to a legitimate state interest.
In my view, the “rational relationship” test should the same for state laws as for acts of Congress. Just as the Supreme Court, when addressing a Commerce Clause challenge, limits its review to whether a law’s subject has some arguable relationship to interstate commerce without considering whether the law itself is a good or a bad idea, I think the Court when reviewing state legislation should similarly limit its review to considering whether the laws subject matter has some rational relationship to a subject matter within the state’s police power. Sexual acts have a relationship to domestic relations that’s at least as strong as relationship that a potted plant (forgive the pun) grown on ones windowsill for personal use has to interstate commerce. If there’s a rational relationship between growing a plant in ones home and interstate commerce, I think there’s a fortiori a rational relationship between sexual acts and domestic relations.
But none of this has anything to do with India. In the United States the Constitution arises from the people and the states and the people preserve all powers not specifically granted, including the power of self governance. I have no idea if Indian law claims to arise from the people in any similar way, or whether it chooses to grant its judges greater discretionary authority over the people and their laws than the United States constitution has chosen to grant United States judges.
July 3, 2009, 1:36 pmEmil T says:
Duke Univ, 2009 v 2006
Frank Lombard, director of Duke’s Center for Health Policy and criminology prof vs Duke Lacrosse players and students
Listen to the silence …
July 3, 2009, 3:40 pmPutting Two and Two... says:
But you have to admit, it’s awfully considerate to publish a major work of literature/art explaining how to make the most of being a filthy disgusting pervert…
July 3, 2009, 4:40 pmOren says:
That would be lovely but, alas, it is not so.
July 3, 2009, 6:06 pm