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 ‘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…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.”
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.
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. 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.
(HT: Rex Wockner).
Great cartoon the other day, entitled: "SOTOMAYOR APPLAUDS WISE LATINA SELECTION!"
Are you criticizing Gov. Sanford, the leading anti-stimulus conservative? Isn't he a feature, not a bug?
You didn't give a link, but I hope it didn't use the bizarre hybrid caricature NR used in their previous cover.
cover
Seems that sodomy and bestiality is a time honored tradition in India.
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.
Now THAT's some tough law!
[WHACK]
Owwww!
You've been hanging around legal discussion boards too long. ;-)
The first line of the OP says it is a colonial-era law, so I'm thinking yes.
To quote the OP:
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 :-)
/sarcasm
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."
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.
Who is this "us" of whom you speak?
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.
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.
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.
We'll never know for sure, but Spitzer might have survived had his extramarital affair not been, you know, illegal.
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.)
pruderybuggery in India might be a good thing.I think the statistics on what percentage of sexually active people engage in oral sex are pretty unequivocal that the answer is about 100%.
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Breakings news: adultery is still on the books in South Carolina.
And in New York, as well.
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?
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.
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?
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?
"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.
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.
Well, being gay is one punishment I just can't get enough of!
"us" -> Hindus. Wasn't that obvious?
No.
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?"
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.
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.
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?
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.
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.
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.
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.
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.
Frank Lombard, director of Duke's Center for Health Policy and criminology prof vs Duke Lacrosse players and students
Listen to the silence ...
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...
That would be lovely but, alas, it is not so.
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