Wednesday, December 11, 2013

Excerpts From Shockingly Homophobic India Supreme Court Sodomy Ruling

The ruling yesterday (from a 2-judge panel) of the India Supreme Court that reinstated a criminal sodomy law in the 1.1 billion-person nation is reverberating around the world. Here are some excerpts from the wildly anachronistic decision that overruled a previous judgment striking down Section 377 of the Indian Penal Code:
  • In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to  privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of  other jurisdictions.
  • The High Court is not at all right in observing that Section 377 IPC obstructs personality development of  homosexuals or affects  their  self-esteem because that observation is solely based on the reports prepared by the academicians
  • The impugned order (Delhi High Court order) does not discuss the  concept  of  "carnal
  • intercourse against the order of nature" and does not adequately show how the section violates the right to privacy. 
  • While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a  miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as  per  the  reported orders) for committing offence under Section 377  IPC. 
  • Unless a clear  constitutional violation is proved, this Court is not  empowered  to  strike  down  a  law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.
  • Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
  • This Court has merely pronounced on the correctness of  the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not  suffer  from  any  constitutional  infirmity.
  • Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section  377  IPC from the statute book or amend the same as per  the suggestion made by the Attorney General.
"So-called rights"? This reads like outtakes from the much maligned 1986 decision of Bowers v Hardwick by the United States Supreme Court that upheld Georgia's criminal sodomy statute at the time and also mocked the idea of the basic dignity and constitutional protections of LGB persons.

A sad day for India and all those who believe in human rights around the world. What right does anyone have in criminalizing private, consensual sexual conduct between adults? How does their activity impact you?

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