Supreme Court pronounces gay sex illegal

[seedhi]

Again - SC is the guardian of fundamental rights ' date= according to the same constitution. Section 377 impinges on these fundamental rights. I have given past examples too on how SC has struck down laws (despite being present in the constitution) - you may want to read them before making further comment. Don't try to draw analogous examples which have little or no relation with the case at hand.

That is the question. Since the Constitution does not recognize homosexuals as a group of people, there is IMO no violation of fundamental rights (as defined in the Constitution) here .. anymore than anti-narcotic laws violate the rights of opium addicts. If the Constitution had recognized homosexuals in the manner it recognizes (say) religious minorities, I would have agreed that Section 377 would outrightly be unconstitutional. The straightforward solution is that Parliament amends Section 377 by a simple majority.

[seedhi]

Let me also add that if the Supreme Court had held the Sec. 377 violates the fundamental rights of homosexuals, that would have had far greater implications. It would have recognized homosexuals as a group of people distinct from heterosexuals. This recognition could have become the basis of other rights - right to marriage, hereditary rights, adoption rights etc. Are we as a society prepared for gay marriage ? Could the Supreme Court, by recognizing homosexuals as a group, unilaterally pave the way for such a radical change in society ? Should this not be left to the people's representatives ?

[hhunaeh]

The entire point of criminalizing certain acts and not criminalizing the rest is to discriminate against certain sections of people. If not how will certain acts become magically acceptable while the rest are not.

[Crookbond]

That is the question. Since the Constitution does not recognize homosexuals as a group of people, there is IMO no violation of fundamental rights (as defined in the Constitution) here .. anymore than anti-narcotic laws violate the rights of opium addicts. If the Constitution had recognized homosexuals in the manner it recognizes (say) religious minorities, I would have agreed that Section 377 would outrightly be unconstitutional. The straightforward solution is that Parliament amends Section 377 by a simple majority.

:blink: The constitution does recognize homosexuals as homosexuals they are still people and people have fundamental rights. Your example on opium addicts is a classic case of "false equivalence" and trying to take a simplistic view of two entirely different classes of problems which don't follow similar characteristics. The reasons to prevent drug distribution are not the same as homosexual sex. Read more on why such equivalences are called "Worst Arguments in the world" - http://www.indiancricketfans.com/showthread.php?t=287335

[ganeshran]

Since the Constitution does not recognize homosexuals as a group of people, there is IMO no violation of fundamental rights

Fundamental rights are applicable to every individual, not just to a group. A homosexual individual is discriminated against because his consensual sexual activity is criminalized. His sexual orientiation is not a conscious choice but his biological predisposition. This is not a matter of how the constitution perceives homosexuals but scientific fact. Article 377 cannot even be applied since we now know that homosexuality is not against the order of nature. It is observed in 400+ species in the animal kingdom. The parliament should indeed amend Article 377 and explicitly decriminalize any sexual intercourse between consenting adults, but the judicial relief given to them in the meantime should not be withdrawn.

[Crookbond]

Let me also add that if the Supreme Court had held the Sec. 377 violates the fundamental rights of homosexuals' date=' that would have had far greater implications. [b']It would have recognized homosexuals as a group of people distinct from heterosexuals. This recognition could have become the basis of other rights - right to marriage, hereditary rights, adoption rights etc. Are we as a society prepared for gay marriage ? Could the Supreme Court, by recognizing homosexuals as a group, unilaterally pave the way for such a radical change in society ? Should this not be left to the people's representatives ?

You have missed the SC judgment. The judgment clearly recognizes the existence of homosexuals and even says they are a "miniscule fraction of India's population". However, the SC has criminalized the act of homosexual (or 'unnatural sex').

[seedhi]

:blink: The constitution does recognize homosexuals as homosexuals they are still people and people have fundamental rights.

No it doesn't. Where is "homosexual" even mentioned in the Constitution ?

[seedhi]

You have missed the SC judgment. The judgment clearly recognizes the existence of homosexuals and even says they are a "miniscule fraction of India's population". However' date=' the SC has criminalized the act of homosexual (or 'unnatural sex').[/quote']By recognize I mean recognize as a class of people who are distinct (physiologically) from others. The SC judgment does no such thing.

[Raghav_12]

The entire point of criminalizing certain acts and not criminalizing the rest is to discriminate against certain sections of people. If not how will certain acts become magically acceptable while the rest are not.

This is beating around the bush. Not in distant memorg two onsenting adults have been prosecuted under 377 nor booked as criminals. This whole criminalization thing is just rhetoric.

[seedhi]

Fundamental rights are applicable to every individual' date=' not just to a group. A homosexual individual is discriminated against because his consensual sexual activity is criminalized. [b']His sexual orientiation is not a conscious choice but his biological predisposition. This is not a matter of how the constitution perceives homosexuals but scientific fact. Article 377 cannot even be applied since we now know that homosexuality is not against the order of nature. It is observed in 400+ species in the animal kingdom. The parliament should indeed amend Article 377 and explicitly decriminalize any sexual intercourse between consenting adults, but the judicial relief given to them in the meantime should not be withdrawn.

This biological predisposition is not recognized in Indian jurisprudence. It is for the Parliament to take the necessary steps.

[seedhi]

This is beating around the bush. Not in distant memorg two onsenting adults have been prosecuted under 377 nor booked as criminals. This whole criminalization thing is just rhetoric.

This is also something I dont completely understand. For example, there are laws banning porn. A large fraction of people browsing the internet do it anyways. No one is ever prosecuted for it. No one is very much agitated about the existence of such a non-operational law either.

[Yoda-esque]

This is also something I dont completely understand. For example, there are laws banning porn. A large fraction of people browsing the internet do it anyways. No one is ever prosecuted for it. No one is very much agitated about the existence of such a non-operational law either.

That really does not matter,the law needs to change or correctly represent it's intent

[Crookbond]

No it doesn't. Where is "homosexual" even mentioned in the Constitution ?

Exactly - and since there is none, by default homosexuals are people and rightful citizens.

By recognize I mean recognize as a class of people who are distinct (physiologically) from others. The SC judgment does no such thing.

The SC judgment criminalizes "consensual unnatural sex" - there is no reason to need to have a separate definition of homosexuals.

[randomGuy]

This is also something I dont completely understand. For example, there are laws banning porn. A large fraction of people browsing the internet do it anyways. No one is ever prosecuted for it. No one is very much agitated about the existence of such a non-operational law either.

The case of LGBT is incomparable with porn ban. LGBT must be protected by every means , by law and by judgement. This issue is a very significant one. LGBT are persecuted esp. if they come from narrow minded families and social setups. ridiculed often by people. Maybe if we were LGBT, we would have appreciated this better.

[seedhi]

Exactly - and since there is none, by default homosexuals are people and rightful citizens. The SC judgment criminalizes "consensual unnatural sex" - there is no reason to need to have a separate definition of homosexuals.

But you see the Delhi HC judgment was not based on the violation of privacy. Instead, and more strongly, the Delhi HC judgment claimed that the fundamental right to life of homosexuals was violated. This claim that fundamental rights are violated must have a basis within the Constitution. The SC did not find that basis. On the other hand, the SC argued that if fundamental rights are not violated then it would be imprudent for the SC to strike down the law (even if it is sometimes misused). The matter should be taken up by the Parliament. Anyway, all I am saying is that the SC judgment is legally sound. It has to be evaluated based on what is in the Constitution. While the judgment may seem regressive it is unfair to blame the SC for going strictly by the Constitution.

[Crookbond]

For example, there are laws banning porn.

False (in India) - Child pornography is banned in India, adult pornography is not illegal for consumption.

No one is ever prosecuted for it.

False - There are people who have been arrested for the same. http://www.ndtv.com/article/india/lt-col-arrested-for-child-pornography-23881

No one is very much agitated about the existence of such a non-operational law either.

False - there has been a huge uproar (check the ICF thread itself) on porn ban in India.

[Crookbond]

But you see the Delhi HC judgment was not based on the violation of privacy. Instead, and more strongly, the Delhi HC judgment claimed that the fundamental right to life of homosexuals was violated. This claim that fundamental rights are violated must have a basis within the Constitution. The SC did not find that basis.

Which is a weak argument, considering they are citizens of India.

On the other hand, the SC argued that if fundamental rights are not violated then it would be imprudent for the SC to strike down the law (even if it is sometimes misused). The matter should be taken up by the Parliament.

And hence, it has requested the legislature to review the law. SC says - it won't do, itself.

Anyway, all I am saying is that the SC judgment is legally sound. It has to be evaluated based on what is in the Constitution. While the judgment may seem regressive it is unfair to blame the SC for going strictly by the Constitution.

Yes and like I said earlier, the blame lies on the legislature first. But, the SC is also supposed to not wrong a wrong but correct it. SC can strike down the law (check earlier post on details) but it chose not to do it. Of course, it is legally sound as it is a matter of interpretation.

[maniac]

Looks like all the Cool Wannabe Liberals seem to have an opinion on this "burning" issue lol.....Fisrtly Making this legal or illegal is going to mean jack anyways, due to the social stigma attached to this especially in a conservative society like ours.Its not like making this legal will get people out in droves discovering their sexuality,Banning this is like Business as usual..... Oh wait it might make Rahul Baba look like the Cool Liberal and the "face of Modern India" But what does a jaahil like me know,I would rather have ruthless and conservative Buddha Modiji impose section 401 that atleast prevents gang rapes in big cities

[seedhi]

False (in India) - Child pornography is banned in India' date=' adult pornography is not illegal for consumption.[/quote']Sale of pornography is banned in India. Several porn websites are banned. Nothing close to what is going on in the present gay sex case.

[Number]

Looks like all the Cool Wannabe Liberals seem to have an opinion on this "burning" issue lol.....Fisrtly Making this legal or illegal is going to mean jack anyways, due to the social stigma attached to this especially in a conservative society like ours.Its not like making this legal will get people out in droves discovering their sexuality,Banning this is like Business as usual..... Oh wait it might make Rahul Baba look like the Cool Liberal and the "face of Modern India" But what does a jaahil like me know,I would rather have ruthless and conservative Buddha Modiji impose section 401 that atleast prevents gang rapes in big cities

Jaahil's definition ~= Non-believer. So Outsider is right when he says most Modi fans are jaahils.:giggle: Although a few jaahils on this site are always trying to prove that he has got votes from non-jahils too in his state.