Gay sex ruling: HC judge accused of judicial impropriety in India
NEW DELHI: A Supreme Court advocate has raised the issue of “judicial impropriety” on the part of Justice S Murlidhar, who had sat on the bench that delivered the judgment in the ‘gay sex’ case.
In two separate letters written to the Chief Justice of the Delhi High Court Justice A P Shah and Members of Parliament, the advocate Janak Raj Jai contended that Justice Murlidhar had himself filed a writ petition in 1994 as a lawyer in the high court seeking quashing of Section 377 of the IPC.
When contacted, Justice Murlidhar’s secretary said the judge was aware of the letter (of the advocate) but had no comments to make.
Jai said Justice Murlidhar had appeared as intervenor in the original writ petition on behalf of an organisation “AIDS Bedhav Virodhi Andolan.”
“Propriety demands that a judge who had been an advocate in a similar case, should not have heard the present petition (Naz Foundation) challenging parts of Section 377 IPC,” the letter, written by Jai to the Chief Justice three days before the judgment was delivered, stated.
In his letter, Jai had sought deferring of the judgment and pleaded that the matter be posted before another bench. See Gay sex ruling: HC judge accused of judicial impropriety
Times of India
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Ancient India didn’t think homosexuality was against nature
NEW DELHI: Was Indian society tolerant of homosexuality before the colonial administration proscribed it in 1860? The government has taken conflicting positions on this within the country and outside.
On a petition pending before the Delhi high court seeking to decriminalize homosexuality, the government said in its counter affidavit that that there were “no convincing reports to indicate that homosexuality or other offences against the order of nature mentioned in Section 377 IPC were acceptable in the Indian society prior to colonial rule.�
But when it was being reviewed by the UN Human Rights Council last year for the first time ever, India distanced itself from that provision when Sweden, arguably the most gay-friendly country in the world, questioned its record in ensuring equality irrespective of a person’s sexual orientation.
This is how Goolam Vahanvati, who was then solicitor-general and is now attorney-general, tried to save India’s face before the council as part of its official delegation. “Around the early 19th Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct.
“As a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted Section 377 which brought in the concept of ‘sexual offences against the order of nature’.
Now in India we didn’t have this concept of something being ‘against the order of nature’. It was essentially a Western concept, which has remained over the years. Now homosexuality as such is not defined in the IPC, and it will be a matter of great argument whether it is ‘against the order of nature.”
Vahanvati’s admission on the international forum that the ban on homosexuality was a western import and its relevance was debatable flies in the face of the government’s unabashed efforts before the Delhi high court to retain Section 377, complete with its colonial baggage and archaic notion of unnatural offences.
Whatever the politics behind this glaring contradiction, there is ample evidence placed before the high court by petitioner Naz Foundation substantiating in effect Vahanvati’s view that in the centuries prior to the enactment of section 377, India was rather accommodating of homosexuals. See Ancient India didn’t think homosexuality was against nature
Times of India
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In India, Homosexuals can now hope for better healthcare Daily News & Analysis
The National Aids Control Organisation (NACO) feels that the Delhi high court verdict on legalising homosexuality will have a far reaching impact on its intervention programmes against HIV/AIDS.”From the public health point of view this is a very positive step as it will help us reach out more and more men having sex with men (MSMs) in our endeavour against HIV/AIDS. Since homosexuality is illegal under IPC 377, not only the MSMs but many of our health workers are also arrested by the police for abetment of crime. As I result a lot of MSMs go underground and are reluctant to seek medical intervention. The HC verdict will help MSMs come out in open and access healthcare,” said K Sujatha Rao, director general of NACO. MSM is a medical term used for the gay. See Homosexuals can now hope for better healthcare Daily News & Analysis
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Homosexuality immoral, but not criminal: Religious leaders
In the first flurry of reactions, religious leaders appeared to be slamming the de-criminalization of gay sex. But while most conservative scholars and clerics remain opposed to homosexuality as an article of faith, many say that they aren’t advocating making it a criminal act as Section 377 of IPC did.
Writer and philosopher Deepak Chopra told TOI from his home in New York, ‘‘A new morality must evolve that is based on a true understanding of human nature, that is also consistent with its biology. Homosexuality has been part of the human condition for as long as human beings have existed. The Delhi High Court should be congratulated for making a decision that finally catches up with our times.’’
Then, while Delhi Catholic Archdiocese has described homosexuality as ‘‘unnatural’’, it says it has nothing against its de-criminalization. Spokesperson of Delhi Catholic Archdiocese, Father Dominic Emmanuel, told TOI,‘‘Homosexuality is a sin — as opposed to a crime. But we believe that those who indulge in it should be treated with respect and compassion.’’
In a newspaper article, Father Dominic was even more forthright. ‘‘It needs to be made clear that the Christian community does not (repeat it does not) treat people with homosexual tendencies as criminals. Nor does it believe that they can be regarded on par with criminals. Therefore, the church has no serious objection to the repealing of Section 377.
‘‘The Vatican’s stand on this is quite clear: Every sign of unjust discrimination in their regard should be avoided’,’’ wrote Father Dominic.
Similarly, some Muslim clerics and scholars, too, favour de-criminalization of homosexuality, saying that while Islam does not permit homosexuality, this doesn’t mean it should be equated with criminality.
‘‘The Quran condemns homosexuality, but doesn’t prescribe any punishment for it. It’s a sin, not a crime. Sin is between Allah and the sinner, but crime concerns the entire society. So, sexual minorities should be left to their conscience. They are answerable to Allah for their act and should not be treated as criminals,’’ said Islamic scholar Asghar Ali Engineer.
Maulana Abu Zafar Hassan Nadvi, a cleric, too accepts that since the Quran is silent on the punishment for homosexuality, it should be treated as an irreligious, immoral act. ‘‘Every non-religious act is not liable to be punished. Just as we don’t pronounce death for atheists, homosexuals should be left alone until they get reformed,” said Maulana Nadvi. See Homosexuality immoral, but not criminal: Religious leaders
Times of India
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“Gay sex shouldn’t be legalised at any cost’ Sez Indian Pol
RJD chief Lalu Prasad denounced Delhi High Court’s ruling decriminalising gay sex and felt the Centre should appeal against the judgement in the Supreme Court.
“Gay sex should not be legalised at any cost and the Centre should appeal against the verdict in the Supreme Court. I am dead against legalisation of gay sex and will strongly raise the issue in Parliament. Section 377 of the IPC should not be amended,” Prasad said.
Asked whether homosexuality is still a crime, he said: “Yes, it is a crime… Such obscene acts should not be allowed in our country. The society is adversely affected.”
“Such things which affect the society should not be permitted at all… Government has a greater responsibility towards the society,” Prasad said.
“I don’t want to talk about such rubbish things. These are obscene things which our country and culture do not permit,” he said.
See Gay sex shouldn’t be legalised at any cost: Lalu
Indian Express -
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