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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India: Legal gay sex ruling challenged
A landmark ruling that legalized gay sex between consenting partners in India was challenged Thursday in the country’s high court, lawyers said.
The supreme court issued a notice to the nonprofit Naz Foundation that had won a lower-court verdict after a seven-year legal fight to decriminalize gay sex.
Notices also were issued to the federal government and the New Delhi high court, which ruled last week that consensual sex between partners of the same gender was legal.
An astrologer filed a petition challenging the ruling. The petitioner argued that no constitutional right is violated by the Indian penal code’s Section 377, which had outlawed gay sex, said his lawyer Praveen Agrawal.
The petition also cited Indian culture and health as grounds for seeking a stay on last week’s ruling, he said.
The supreme court posted the next hearing for July 20.
Last week’s ruling meant the law — Indian penal code section 377, which had previously criminalized consensual homosexual acts between adults — was partly struck down but remains in place as far as forced homosexual acts are concerned.
The verdict affects law enforcement all around India because it deals with a law enacted by the federal parliament.
See India: Legal gay sex ruling challenged
CNN Internationa
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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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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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Religious groups in India have warned they will…
Religious groups in India have warned they will oppose any move to legalize homosexuality as the federal government prepares to hold talks on a law that classifies same-sex acts as crimes.
India’s Hindu nationalist main opposition has in the meantime called for a national debate on the legislation that law minister M. Veerappa Moily last week said would come up for a discussion within the government.
“This is a sensitive issue and warrants a debate within the Indian society at large before arriving at any decision,” said Sidharth Nath Singh, spokesman for the opposition Bharatiya Janata Party.
An Indian court is due to give its judgment on a petition filed by a nonprofit group that has challenged the anti-gay provision of the penal code.
In a news conference last week, Moily refused to spell out his government’s stand on it because it awaits judicial determination. But his comments that the federal home minister was “contemplating” a meeting with his Cabinet colleagues on the law drew widespread coverage in the largely conservative country.
“Hope floats at rainbow parades,” read a caption on a front-page picture from a gay parade in New Delhi in Monday’s Times of India newspaper.
Participants in that march demanded repeal of Section 377 of the penal code, which criminalizes private consensual sex between adults of the same gender in the country. 
Watch a New Delhi march in support of gay rights »
Religious leaders, however, oppose any suggestion to scrap 377, describing homosexuality as “unnatural.”
“We are against calling homosexuality a criminal activity, but we are certainly in principle against legalizing it, because that would mean the state endorsing same-sex relationships,” said Babu Joseph, spokesman for the Catholic Bishops’ Conference of India.
Homosexuality “violates fundamental norms of a family,” he said.
See India faith leaders: Anti-gay law must stay CNN International
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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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Activists welcome Delhi hc’s gay verdict
Gay support groups of Vadodara have welcomed the Delhi High Court’s verdict that decriminalised homosexual relations.
They said the judgment will help solve health issues
such as HIV/AIDS, adding that the abolition of
Section 377 for adults shall also solve several ailments among the weaker segments of society.
Maya Sharma, Parma’s Founder trustee, said: “This judgment is indicative of the changing values of society and will enable further change. Generally, this movement has been seen as western, but in reality, this change would not have been possible without support and participation of people cutting across the religion, caste and age lines.”
Pointing out what kind of legal challenges women have faced recently in the state, Sharma said: “While marriage is almost compulsory for all, when it comes to women, there was a complete lack of choice. Recently in Ahmedabad, a same-sex couple went to the police for help only to be turned away because there was no provision for protection of a woman having a woman partner.”
See Activists welcome Delhi hc’s gay verdict
Indian Express
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Delhi HC verdict on panel provision of gay sex likely Toda
See
New Delhi: The Delhi High Court is likely to pronounce its verdict tomorrow on the controversial penal provision on homosexuality even as the government is grappling with the option to scrap it from the statute.
A bench of Chief Justice A P Shah and Justice S Muralidhar had reserved its order on November 7 last year after marathon proceedings in which the government had vociferously opposed scrapping of section 377 of the Indian Penal Code which prescribes punishment upto life imprisonment for indulging in unnatural sexual acts.
Before the judgement was reserved, the Ministries concerned with the issue in the previous UPA government had unanimously described homosexuality as “the most indecent behaviour” in society.
The Centre had submitted that gay sex is immoral and reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.
“Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour (gay sex) is legalised in the country,” the government had contended adding allowing gay sex would pose a health hazard to society.
The Centre had said that homosexuals comprise only 0.3 per cent of the population and the right of rest 99.7 per cent of the population to lead a decent and moral life in society would be violated if such behaviour (gay sex) is legalised. See Delhi HC verdict on panel provision of gay sex likely tomorrow
SamayLive
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India Decriminalizes Gay Sex
n what many are calling “India’s Stonewall”, the New Delhi High Court on Thursday decriminalized homosexual intercourse between consenting adults, by striking down section 377 of the Indian Penal Code. This law labels gay sex to be an “unnatural offense”, punishable with up to ten years in prison.
Drafted in 1860, this Colonial-era law was brought into effect by the British, and was in line with similar anti-homosexuality legislation passed in England at the time. In the past decade, gay rights activists and lawyers have strived hard to abrogate Section 377, calling it “inhuman”, and as the Naz Foundation, which filed the petition to abolition 377 in 2001 argued, a violation of constitutional rights to privacy and equality.
No Rain on Their Parade
In its ruling today, the Delhi High Court affirmed that claim, saying that Section 377 violated basic human rights. The same court, however, had dismissed a similar petition in 2001. It is clear that this latest ruling is a reflection of increased activism by gay rights groups and high profiled supporters like Bollywood actress and Former Miss World Celina Jaitley, along with a more progressive government.
See
India Decriminalizes Gay Sex
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Gay businessman gets anticipatory bail
MUMBAI: A sessions court has granted gay businessman Ratan Shrivastav anticipatory bail. His wife, Pooja, had filed a case against him under Section 377 of the Indian Penal Code. Homosexuality is a cognizable offence in India.
While granting Shrivastav bail, Judge D U Mulla held that there was no need for custodial interrogation in the matter. Pooja had lodged a complaint with the Gamdevi police station in February, claiming that Shrivastav’s relations with other men was taking a toll on their marriage.
The complaint was filed against Shrivastav, a resident of Peddar Road, and his alleged partner, Damien Christopher, a sailor with the merchant navy. Christopher has already been granted anticipatory bail. Shrivastav’s advocate V Kantawala told the court that Pooja married his client in 1994, and had been living with him ever since. The couple has an eight-year-old son. See Gay businessman gets anticipatory bail
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