Comments on The Rational Fool: Gay Ho!

etlamatey: Well, the Delhi High Court has just don...

2009-07-04T13:15:04.350-07:00

etlamatey:
Well, the Delhi High Court has just done that, sort of. I guesss the question is if the state government could amend the IPC.

I am not knowledgeable enough on the Constitution of India, and the devolution of powers from the Union to the State Governments. A casual reading of the Schedule 7, suggests that the criminal law (in particular IPC Section 377) is in the concurrent list (both States and the Union can legislate).

Also, this from the proceedings of Naz Foundation vs. Government of NCT of Delhi and Others:

The ASG then drew the Court's attention to the seventh schedule of the Constitution that lists out subjects on which the Parliament and State legislatures can legislate. Pointing out to entries 1 {criminal law including IPC}, 2 {criminal procedure} and 3 {maintenance of public order} on the concurrent list {areas where both Parliament and State Legislature can make law} , the ASG said that so far, none of the States have repealed or even contemplated repealing Section 377. He argued that State legislatures reflect the will of the people, which is to retain proscriptions against sodomy. He pressed the Court to bear this fact in mind.

I suppose, if the Union Government were to amend Section 377 in accordance with the Delhi High Court judgment, then the States would be free to restore it so as to once again criminalize homosexual conduct.

There are two riders to this. First, the Union Government can amend the Seventh Schedule of the Constitution to include Section 377 in List 1, and thus put it beyond the reach of the states. I seriously doubt if this government has the spine to do this. Second - this is the more likely scenario - the Supreme Court could intervene, and affirm that criminalization of homosexual conduct - for that matter any private, consensual, sexual conduct between adults, for example, heterosexual oral sex, which may be construed as against the "order of nature" by certain sections of the society - is unconstitutional.

I'd appreciate it if someone with a better appreciation of constitutional law in India responded to etlamatey's question. Thanks.

Do state High Courts have the authority to overtur...

2009-07-04T07:40:18.937-07:00

Do state High Courts have the authority to overturn IPC laws?

I wish the issue of gender-minorities will boost t...

2009-07-03T03:44:13.679-07:00

I wish the issue of gender-minorities will boost the awakening of other not-so-colourful minorities who don’t even have a reason like a constitutional ban to fight against - people like mine workers, sanitation workers, aborigines etc. Gay rights indeed is a matter of concern I agree. But I’ve not seen any of the social networkers or TV experts talking passionately for days together about the rights and lives of so many of these minorities who don’t have a voice, who don’t know they are a minority, who never realized that they are being exploited, who don’t even know there is a constitution, there is a government, there are concerned people out there who can make their lives better… May be they are too insignificant a lot, maybe they are enjoying too much of constitutional right already, maybe it’s the governments job to address such issues, or maybe I’m too cynical a person. And all those religious, highly moral, compassionate people, don’t get me started on how you safeguarded the rights of thousands you all killed in the name of god.