The Volokh Conspiracy - 1.2 Billion People to be Cleared of Potential Sodomy Charges:

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).

	[Dale Carpenter, July 2, 2009 at 11:13am] Trackbacks 1.2 Billion People to be Cleared of Potential Sodomy Charges: 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).