Posted by Dale Carpenter:
1.2 billion people to be cleared of potential sodomy charges:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246547581
The Delhi High Court [1]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.
The decision applies only to the country's capital district but is
expected to prevail, by judicial action or legislation, in the entire
country. It's subject to review by the Supreme Court of India, but
most observers expect it to be upheld.
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: [2]Rex Wockner.
References
1. http://www.nytimes.com/2009/07/03/world/asia/03india.html?ref=asia
2. http://wockner.blogspot.com/2009/07/will-17-of-worlds-gays-be.html
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