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gay rights

11 February 2016

India isn’t the only country currently wondering about “carnal intercourse against the order of nature”, to quote section 377 of the IPC Apparently, in the US a piece of semi-news has gone viral that Michigan has made oral and anal sex illegal. That’s not quite true - the Michigan legislature when amending the penal code simply didn’t remove the outdated section:

When the Supreme Court decided Lawrence v. Texas by a 6-3 margin in 2003, making oral and anal sex legal nationwide, 14 states still had anti-sodomy laws on the books.

The decision (which has a fascinating history) invalidated those laws. Still, 12 states, including Michigan, never repealed them.This isn’t necessarily unusual. Legislators love passing laws, but they’re much less likely to go back and clean up old ones. State criminal codes are overstuffed with outdated, unconstitutional, unenforceable laws of all kinds, and Michigan is no exception.

Adultery is technically a felony in Michigan. So is “seducing and debauching an unmarried woman.” The state’s penal code says unmarried people who live together can be fined or put in prison.

Read more at Vox.

02 February 2016

Chief Justice of India (CJI) TS Thakur, and justices Anil R Dave and Jagdish Singh Khehar, will hear the section 377 curative petition today at 3pm in the Supreme Court.

15 December 2015

Former Delhi high court Chief Justice and chairperson of the Law Commission AP Shah criticised the Supreme Court for overturning Delhi high court judgment on decriminalising homosexuality and commented that the Supreme Court bench had “ignored the counter-majoritarian role of the judiciary” while speaking at the Tarkunde Memorial Lecture at the India International Centre, reported The Indian Express.

He expressed his concern over the Supreme Court’s decision which ignored a violation of fundamental rights and chose to stick with outdated laws. He was quoted as saying:

The Supreme Court neither engaged with the change in English law nor with changing social mores globally. Instead, the court’s views suggest that the legitimacy of a law is unquestionable, regardless of its origins in an imposed foreign morality or contrary evidence, scientific or otherwise. In fact, the high court’s extensive consideration of international developments were brushed aside by the Supreme Court.

Observing that either the judiciary or the legislature have the power to repeal Section 377 of Indian Penal Code that criminalises intercourse against the course of nature, he added: “It cannot be a never-ending game of toss and catch between the legislature and the judiciary. Someone must take up the gauntlet. Both the legislature and the judiciary need to act independently, but act now they must.”

20 September 2015

On September 15, the Supreme Court bench of justices Anil Dave and Adarsh Kumar Goel expedited a pending hearing on admission of SLP, and granted leave thus converting it into a civil appeal, even while continuing the ad-interim relief granted earlier. In the normal course, it would not have raised eyebrows. But when it became known that the subject of the SLP is about the Government’s denial of tax exemption to a film on gay sex, Meghdhanushya, (meaning a spectrum or a rainbow) it made news and rightly so. The film centers around a young boy who finds himself attracted by persons of his own sex.

30 June 2015

DV Sadananda Gowda, commenting on the US Supreme Court’s national country-wide legalisation of gay marriage last week, said that the government could de-criminalise gay sex under section 377 of the Indian Penal Code and might even consider gay marriage as an option.

“The mood appears to be in favour of it. But it can be done only after widespread consultations and taking all views into account,” he told the Economic Times.

Update: Gowda has told ANI News that he was "totally misquoted": "When I was asked about the judgment that was given by the US court, I said that it is not an easy task in our country. So, the people of that country might have accepted it but here it has to be widely debated. Only then can something be done. Otherwise, it is not an easy task. So, we have no idea of scrapping or doing anything about [Section] 377."

Hat-tip: @mohitsingh8 and @sayantan_b on Twitter

26 June 2015

In a landmark judgement, the US Supreme Court ruled on Friday that gay people can marry nationwide and states cannot ban same-sex marriage - an issue that divides America and India.

29 October 2014

A Bangalore employee of Infosys has been arrested under section 377 of the Indian Penal Code for allegedly having sex with another man, which was recorded by his arranged-marriage-wife of six months on a hidden camera, reported the Bangalore Mirror.

The Supreme Court reinstated the colonial-era section 377 provision earlier this year after the Delhi high court had struck down the law, which bans “carnal intercourse against the order of nature” and has been used by police to harass the gay community.

31 January 2014

l0umjcrsCountering Alok Prasanna Kumar’s counter-argument earlier this week, Sudhir Krishnaswamy and Shishir Bail counter that a presidential reference remains the best course of action to remedy the Supreme Court’s reversal of the Delhi high court’s judgement that struck down section 377.

28 January 2014

Advocate Alok Prasanna Kumar argues against a presidential reference as a tool to cure Koushal v Naz, as suggested in a previous column by Sudhir Krishnaswamy and Shishir Bail.

Today the Supreme Court has rejected a review of its own Section 377 judgment. A curative petition too will likely end in failure, given the high rate of rejection for review and curative petitions. But while there is much wrong with the Koushal v Naz judgment, we should not give in to the temptation that Section 377 cannot be struck down by a Constitutional Court and must instead be left to Parliament to repeal. For one, there isn’t even a cogent argument to that effect you will find on reading the Supreme Court of India’s judgment in Koushal.

28 January 2014

Supreme Court justices HL Dattu and Sidhansu Jyoti Mukhopadhaya have rejected a number of review petitions of its late 2013 judgment that effectively re-criminalised homosexual intercourse.

The bench said in its order: “We  have  gone  through  the  Review  Petitions  and  the connected papers. We see no reason to interfere with the order impugned. The Review Petitions are, accordingly, dismissed.”

[Read copy of the order]

The December 2013 Supreme Court bench of Dattu and Mukhopadhaya, which was headed by Justice GS Singhvi when it handed down its judgment on the day Singhvi retired, had overturned the Delhi high court's judgment that held section 377 as unconstitutional.

Section 377 of the Indian Penal Code makes “carnal intercourse against the order of nature with any man, woman or animal” punishable with a maximum life prison sentence.

[Read the Supreme Court's December 2013 judgment]

A curative petition will likely follow now.

27 January 2014

Former Himachal Pradesh high court chief justice, Delhi high court justice and law commission member Leila Seth, who is also mother to a son who is homosexual, writes condemning the Supreme Court judgement re-criminalising homosexual intercourse in the Times of India.

The original Delhi high court judgment striking down section 377 was a “model of learning, humanity and application of Indian Constitutional principles . It was well crafted, and its reasoning clearly set out”, writes Seth. But when the Supreme Court overturned the lower court in December 2012, she was “extremely upset” because of her eldest son, and added:

A host of academics and lawyers have critiqued the judgment in great detail, including the non-addressal of the Article 15 argument, and have found it wanting in many respects. I do not intend to repeat those criticisms. However, I should point out that both learning and science get rather short shrift. Instead of welcoming cogent arguments from jurisprudence outside India, which is accepted practice in cases of fundamental rights, the judgment specifically dismisses them as being irrelevant. Further, rather than following medical, biological and psychological evidence , which show that homosexuality is a completely natural condition, part of a range not only of human sexuality but of the sexuality of almost every animal species we know, the judgment continues to talk in terms of 'unnatural' acts, even as it says that it would be difficult to list them.

But what has pained me and is more harmful is the spirit of the judgment. The interpretation of law is untempered by any sympathy for the suffering of others.

Read the full column at the TOI.

20 January 2014

KrishnaswamySudhir Krishnaswamy and Shishir Bail argue that a presidential reference against the Supreme Court’s reversal of the Delhi high court’s judgement in Naz, is strategically superior as it provides the court with the institutional process and scope for enquiry that is necessary to address the critical constitutional questions that have arisen through the Supreme Court’s judgement that overruled the lower court.

17 December 2013

Advocate-on-record Amit Gupta puts forward the unfashionable opinion that, although Justice GS Singhvi’s judgment in the section 377 gay sex case was not perfect and unpopular, he did in fact get the law right.

16 December 2013

Section #377 attracts international condemnation
The Supreme Court’s upholding of section 377 banning homosexual intercourse, has continued attracting global attention with thousands of newspaper articles globally [Google News], and protests by gay activists around the globe opposing the judgment [Gay Star News]

Anand Grover: #377 review petition and lobbying ongoing
Naz lawyer and Lawyers Collective co-founder Anand Grover confirms that Naz will be filing for a review petition and lobbying with parliament to change the law [DNA]

…as BJP speaks against ‘unnatural’ gay sex, Cong goes for youth
As most commentators in media and academia have criticised the Supreme Court’s decision on section 377, the BJP has come out in support of the verdict, with party president Rajnath Singh saying his party would support a ban “as we believe that homosexuality is an unnatural act” [NDTV] Congress might use the contrast to the BJP’s stance in the s. 377 issue to lure the youth vote away from Narendra Modi, argues the Deccan Chronicle

NCRB to begin publishing #377 ‘crime’ data
Meanwhile, the National Crime Records Bureau (NCRB) will collect and publish more detailed data on section 377 offences recorded by the police every year [PTI]

12 December 2013

Surabhi ShuklaJindal Global Law School (JGLS) senior research associate Surabhi Shukla argues that the Supreme Court made a serious error in its judgment, which would pave the way for a review petition of the judgment.

11 December 2013

377Legally India has culled seven main reasons from the 98-page judgment, explaining why the Supreme Court decided that a lower court was wrong to repeal the law effectively banning homosexual intercourse.

11 December 2013

s34ujh4aThe Supreme Court has criminalised homosexual intercourse between consenting adults today, reversing the Delhi high court’s 2009 decision to overturn section 377.

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