I’m sick and tired of hearing people defend the SC by saying “It’s parliament’s job to create law, not the court’s”. No shit. But they are conveniently ignoring another crucial aspect of the judiciary – namely the power of judicial review. This is so important that it’s enshrined in Article 13 of the Constitution. Here it is:

1. All pre-constitutional laws, if in part or completely in conflict with the Constitution, shall have all conflicting provisions deemed ineffective until an amendment to the Constitution ends the conflict. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.
2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void ab initio.
3. In such situations, the Supreme Court or High Court interprets the laws to decide if they are in conformity with the Constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 226 and 227 provide a constitutional basis to judicial review in India.

Oops. Looks like not only is it parliament’s job to create laws, it’s the Supreme Court’s job to ensure that those laws are consistent with the Constitution. Otherwise those laws are invalid.

Ding ding ding! Checkmate.

So let’s have no more bullshit about how the Supreme Court only has to interpret the law and that it’s not its job to create law blah-de-blah-de-blah. What we want…what we demand is that the SC follow the damn Constitution and strike down laws that go against it. That is its job. That is its mandate. That is one of the prime purposes of its existence!

It gets even better. Over the years, the Supreme Court has repeatedly held that privacy is a fundamental right in India. In fact, the scope and breadth of the fundamental rights have been constantly increasing as courts not just in India, but around the world take a more and more expansive view of phrases like “right to life”. So it’s hardly surprising that the Delhi HC held that the freedom to do whatever you want in your bedroom was a fundamental right.

But if we are to take the recent rulings of the SC at face value, we are to simply accept that the government has a right to pry into people’s bedrooms. That the criminalization of a person’s sexual activities are in no way incompatible with the Constitution! This is not the nature of the country I’m living in!

If this Section 377 is not unconstitutional, please tell me what the hell IS unconstitutional.This is as unconstitutional as it gets! Every civilized country in the world has recognized this simple fact. Hell, most intelligent Indians have recognized it too. And the institution which is supposed to be on top of such things, which is charged with upholding the liberal values of our Constitution feels it’s ok! I’m not even sure anymore whether or not this is all some huge practical joke by the SC.

And let’s get one thing out of the way. Section 377 is not just about gays and homosexuals. It affects everyone since it criminalizes all so-called “unnatural” sexual activities…including oral sex between consenting adults! It makes criminals of us all. Are you happy with that? Are you happy being a criminal in your own country by expressing love in the privacy of your room? This is abhorrent and goes against all principles of natural justice.

And the SC has allowed this blatantly unconstitutional law to stand??? Unbelievable! What the f*** is wrong with them?

Dear SC. Please note that we’re not asking you for something special. We just want you to do your bloody job!

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43. 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 and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.“

That’s right. Let’s keep an unfair law on the books that deprives lakhs of people of the right to live with dignity because only a few people have actually been convicted under it. What’s the problem? It’s not as if the law is being abused to scare, intimidate and coerce people.

Oh wait…

Next up:

42. Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.

The SC has taken upon itself to declare homosexuality “against the order of nature”. Well I guess I should stop brushing my teeth now. That’s “against the order of nature” after all. Besides, ask any biologist about homosexuality in the animal world.

It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.

Translation: If we ban adoption, it is in no way discriminatory against childless couples because all couples including those with children and those without are prevented from adopting!!

9. In terms of Section 377, IPC, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, commits the offence. Words used are quite comprehensive and an act like putting male organ into victim’s mouth which was an initiative act of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable under Section 377, IPC.

Translation. Oral sex is a crime.

However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.

Translation: If Parliament was too lame ass and cowardly to come out with a law, that means the existing situation is A-ok and life is good. The fact that the current state of affairs is unconstitutional doesn’t matter.

Is this the same court that has passed down such awesome and progressive judgments in the past? How do you say stuff like this?

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Today I am ashamed to be an Indian. I can’t believe what has happened. The Indian Supreme Court has acted in a cowardly manner and handed the responsibility of striking down Section 377 to the government! The Delhi High court verdict was a masterful piece of work. Citing examples from all over the world, medical opinions, and defining an expansive concept of personal liberty. All that has now been thrown into the dustbin.

I’ve been trying to get a copy of the full text of the verdict, but haven’t been able to do so yet. But what is there to say? For a brief while, India could lay a claim to be a fair state where personal liberty was upheld. Now the court has essentially said that the government has the right to poke its nose into what people do in their bedroom!

I’m still in shock. Why did the SC have to do this? Even the government had admitted that the High Court’s verdict was well presented and Constitutional! It was a done deal. So what the hell happened? I’m not going to bother arguing about the merits of the case. Gay sex is not a crime, doesn’t harm anyone, and is done in the privacy of one’s own room – not on the street. The law is an ass and can go suck a lemon. “Culture” can go fuck itself. “Morals” can do the same. I live in a country governed by Constitutional principles. And the Constitution guarantees liberty and freedom, and the right to life. The Supreme Court has just take all that away. While it was busy legislating who can drive a car with a red beacon, it has failed to protect the citizens of this country from persecution and injustice.

I am sick with anger and shame for my country today. I refuse to be associated with it anymore – I may be a legal citizen but I am throwing away all allegiance and loyalty. This country does not deserve the support of decent people if it cannot protect even the basic right of people to live as they please without hurting anyone else.

I feel betrayed. The principles of the Constitution has been perverted. Justice has been subverted. We have gone back to the dark ages. No amount of technology, development and poverty alleviation can wipe off the stain of this abhorrent judgment. I don’t have enough talent to express my anger and outrage in words.

If this is contempt of court, then so be it. I have nothing but contempt for it after this verdict.

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So here is the status as of now:

Note the addition of two more cases at the bottom to add to my tracking woes :( .

Some may remember that the Krantikari Manuwadi Morcha once supported Dara Singh who killed the Australian Missionary Graham Staines and his two sons. Now they’re aligning themselves to challenge the reading down of Section 377 with a Christian organization who’s trying to get justice for Graham! So basically killing 3 people is okay, but heaven forbid two people have sex in private!

The Raza Academy at the bottom of the pile apparently feels that India is subject to Muslim Sharia law by saying “The government should have held discussions with religious organizations before repealing the controversial Section- 377.”

So the number of people opposing the ruling has now reached a nice round figure – 10. I hope they cry themselves hoarse. Because any fool can see where this case is going – the loonies haven’t a prayer.

P.S: Apparently the court’s site gets updated many days after a hearing which is why I’m unable to immediately post the next hearing date. Maybe they have a weekly schedule or something- or perhaps they can’t handle the load. Bear with me on this…

To get future updates on the progress of the challenge to Section 377, you can subscribe to the RSS updates or choose to get notified via email.

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Bestiality is different type of crime – namely cruelty to animals. Doing what you want in the privacy of your home doesn’t extend to the freedom of indulging in private abuse. So this particular crime has nothing to do with homosexuality which takes place in private between consenting adults.

Image Credit: nickjohnson

The whole “against the order of nature” is a specious argument. Those who indulge in it, should stop brushing their teeth for starters. And here’s the kicker – homosexuality is natural. Animals happily engage in gay sex without our prejudices against such unions.

And that gurgling sound you hear is this particular argument of the anti-gay crowd getting flushed down the toilet.

And here’s the last point – if a particular animal (say a cow) has a large enough vagina to not be affected whatsoever by a gentleman’s activities directed towards it, I see no reason for it to be illegal. I mean sure it’s not something I would do, but hey it takes all sorts! What’s the harm? The cow doesn’t care. Victimless crime. And I don’t think that victimless crimes should be crimes at all.

How do you feel about Article 377? Take the poll:

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Next hearing on 29th October 2009. Now for the long answer.

There are no less than eight petitions against the Delhi HC’s Landmark judgment on Article 377. The people who’re complaining range from Astrologers, Hindutva leaders, Churches, Guardians of “public morality” and even the Commission for the protection of children. Some case numbers are changed, tagged with others, and for quite a few cases, I have absolutely no clue when the next hearing is. Still, after digging around and cross consolidating, here is the status as of today.

The following people are fighting the reading down of Section 377:

B.P Singhal (BJP Hindutva guy)
Old Case No. PC 12779/2009
New Case No. DC 22267/2009
No further info

Bhim Singh (The guy from the Panthers Party)
Old Case No. PC 10942/2009
New Case No. DC 25346/2009
Tagged with SK Tijarawala’s Case. DC 20913/2009
Next Hearing on 29th October 2009

Suresh Kumar Kaushal (Astrologer Fellow)
Case No. DC 15436/2009
No Further info

S. K Tijarawala (Secretary to Ramdev)
Old Case No. PC 9928/2009
New Case No. DC 20913/2009
Tagged with Suresh Kumar Kaushal DC 15436/2009
Next Hearing on 29th October 2009

Apostolic Churches
Old Case No. PC 10062/2009
New Case No. DC 20914/2009
Tagged with S. K Tijarawala DC 20913/2009
Next Hearing on 29th October 2009

Krishna Bhat (Litigious Bangalorean)
Case No. PC 11651/2009
No Further Info

Pratinidhi Sabha (Some Hindutva Organization)
Case No. PC 14042/2009
No Further Info

Delhi Commission for Protection of Child Rights
Old Case No. PC 14045/2009
New Case No. DC 24334/2009
Tagged with Suresh Kumar Kaushal’s case DC 15436/2009

So it seems there are two major factions. One is the Tijarawala faction that has two other petitions tied to it. The other is the Suresh Kaushal faction that has the child rights petition tagged to it. The Tijarawala petition will be heard on the 29th of October – a long time away.

Let’s just hope that no one else jumps into the fray or I’ll go crazy.

Update (25th October 2009): Tijarwala’s case has been combined with Suresh Kumar Kaushal’s DC 15436/2009

What do you think? Take the poll!

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Good ol Bhim seems to be upset since he feels that “just two judges” cannot change “his law.” But wait! He’s not gay is he? Apparently not. So it’s not “his law”. Neither does he seem to give any value to “his” constitution which promises equality of all including homosexuals. He rattles off the bromides with considerable expertise. “Cultural invasion”, “Against Indian Culture”, “Not be tolerated” etc. ad nauseam.

I really hope the SC puts paid to this issue once and for all – but it feels good doesn’t it? I can almost feel myself drooling as the SC dismisses the challenge. I just wish I could be there to see the unfortunate Bhim’s face.

To keep upto date, subscribe to further updates on the hearing of Article 377. Or you can receive an email about further updates to this case.

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Image Credit: nickjohnson

This isn’t really surprising to us since the government had already opined that the ruling was constitutional, and this is just a formal solidification of that stand. It means that the UPA has decided not to listen to astrologers, self styled preservers of “Indian Culture”, and those who would impose religious law on a free country. It’s quite a bold stand in spite of the government not outright supporting the verdict, which would be very politically unwise.

This way they’re able to say “See! The Constitution of India is the law. It’s not upto us. The SC will handle it.” Perfect. Now the Indian Supreme Court also knows that the government wants Article 377 to be read down.

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Apparently, the case has been postponed till the 29th of September with no explanation given. Must have been some legal hold up. I wish there was some way to find out. You can see in the screenshot below that the case has been scheduled till the end of the month. (Click on it to see it in detail).

Finding it wasn’t very easy though. There are a whole bunch of petitions relating to this issue with everyone challenging the judgment including the “Apostolic Churches Alliance” the the “Delhi Commission for the Protection of Child Rights.” See the screenshot below to see who all have taken an interest.

The one we’re interested in (I think) is the fourth one with Case No. DC 15436/2009. Suresh Kumar Kaushal or SK Kaushal was the astrologer who somehow thinks that the Defence of the Nation is threatened by homosexuality!

I’ll be covering this court case whenever it’s scheduled whether the newspapers report it or not. Stay updated on the feed for RSS updates. For those who want to see for themselves, visit http://courtnic.nic.in/courtnicsc.asp, click on “Title” on the left, enter “Naz Foundation” into the text box of the new form, and select “Respondent” from the drop down box along with the appropriate year. I had to hit the “Enter” key from the textbox for the form to submit in Firefox. I don’t know if it’ll work in IE.

I hope this case doesn’t keep getting postponed one date after the other – it’ll be a real drag if it does. The issue that is pending I think is the official statement from the government as to what their stand is. We have to wait for Chidambaram to join his voice to the Health and Law ministries now that he’s back from his five day visit to the US. Let’s hope that happens soon.

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The law minister Moily also praised the court’s verdict calling it very well argued and well presented.

Image Credit: The Advocacy Project

Hopefully this means that when the government gives its position to the Supreme Court for the hearing on the 14th of September 2009, it will support the decriminalization of Homosexuality. It took pains to point out that Article 377 was not abolished, but was “read down” to allow consensual gay sex between adults. This is so that the government can still have a law to deal with child molestation. Another reason no doubt, was to reassure the opponents of the verdict that it wasn’t doing away with the section completely – a good response overall.

Stay tuned on this blog for more on the progress of Article 377. How do you think the Supreme Court will rule on the issue? Take the poll!

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