#indialgbt

[rkmerley]

You really don’t feel like you’ve lived unless you heard this song.

[nonbinary-nature-lover-jeri]

I created this when I created an earlier version a day and a half ago. In light of the developments in India it seemed appropriate to launch this meme. It seems appropriate to thank India because many “rights” movements in the USA were inspired by Mahatma Gandhi’s non-violent movement for social change. So congratulations India, Do No Harm, But Take No Shit! . #India #NoMoreSodomyLaws #Overturn377 #377Gone #IndiaLGBT #IndiaLGBTQIA #LGBTQRights https://www.instagram.com/p/BnYcYvBnrc7/?utm_source=ig_tumblr_share&igshid=hyceaejmczw7

[theindiangay]

We wanted to highlight this post by Manjinder Singh Sidhu to our page. We love you mom 

-------------------------------------------------------------------------------- My super amazing mum explains what homosexuality is to parents in Punjabi! Watch my awesome amazing mum explain what homosexuality is, how to accept your child when they come out and how not to pressurise them. All in punjabi by the requests out there so you can show to your parents! http://youtu.be/Lndphju0HpA If you want more support then please visit www.myspiritualsoul.com and go to the contact section and send me a message. Also SUBSCRIBE to my YOUTUBE channel for more amazing vids, LIKE on FACEBOOK and more importantly SHARE to all those who need the support! Leave a COMMENT below too! Your doing so will save lives and help people live authentic happy lives. You are never alone!

[niramish]

Why the Supreme Court judgment in Koushal v Naz is flawed- Part 1

So today, the 11th of December, marks a year of the Supreme court of India’s decision to re-criminalise homosexuality by overturning the 2009 Delhi high court judgment in the case of Koushal v Naz.  To mark a year of section 377 being reinstated, I thought I should do a post on why the Supreme court judgment is flawed. The below analysis is from a range of legal critique that I have read regarding the issue.  I decided to compile them in a two part post for easier reading. This is the first part of of a 2 part post.

To begin with it seems the honourable judges seemed very ill-prepared to deal with the case. Justice Singhvi boasted that he had never met a gay person in his life whereas Justice Mukhopadhyay wondered what a bisexual was and insisted that there can't really be transsexual homosexuals.

The tone of the judges was generally dismissive and insensitive. Singhvi tried to portray a landmark South African Constitutional Court ruling as the work of a homosexual judge.

The bench freely invoked deeply offensive stereotypes without any apology or reservation. Mukhopadhaya claimed that hijras are always “recipients.” Kothis, he volunteered, have a “feministic way of talking.”

The Court did not seriously inquire whether Koushal and his cohorts had adequate standing to maintain their appeals.The judges failed to meaningfully examine what harm Koushal suffered. How was he or the other appellants affected by the high court’s ruling? 

Singhvi recognises the laws can be overturned by courts but courts must exercise judicial restraint and respect separation of powers. He applies the presumption of constitutionality principal - that is that all laws are deemed constitutional unless otherwise proven. To back this up he uses the Tendolkar 1958 case. The problem with this is that Tendolkar came after the constition had be put inforce in 1950. Therefore, Tendolkar's direct relevance to section 377 - a 160 year old law is open to doubt. 

Anticipating this argument Singhvi cited a another case (infact he block quotes from the case without citing the name the case or the reference - appalling for a supreme court judge really). Anyway the case is  John Vallamattom v. Union of India. Singhvi through the quote suggests all pre-constitutional law is valid. However, if one were to read the quote then it appears quite the contrary: 

The Quote is: "[T]he Constitution of India per force does not make a pre-constitution statutory provision to be constitutional. It merely makes a provision for the applicability and enforceability of pre-constitution laws subject of course to the provisions of the Constitution and until they are altered, repealed or amended by a competent legislature or other competent authorities. "

In other words, according to John Vallamattom, the Constitution confers no free pass on pre-1950 laws, like Section 118 of the Succession Act or Section 377 of the Penal Code. 

Moreover, in John Vallamattom, the Court actually struck down Section 118 of the Succession Act as unconstitutional. 

Therefore,John Vallamattom undermines Singhvi’s central hypothesis that laws are presumptively constitutional just as he begins to build it.

Singhvi then cites the case of Anuj Garg & Ors vs Hotel Association Of India. It is puzzling as to why Singhvi chose this case as here too Court struck down the pre-constitutional law in question.

Singvi also glossed over what actually happened in actually happened in John Vallamattom. When invalidating Section 118 of the Succession Act, the Court pointed out that the equivalent provision in English law had already been repealed. (Just like how the equivalent of section 377 in England had been done so nearly 50 years back.) 

So why does development in England matter to India? well the John Vallamattom case states: "It may be true that the Indian Parliament is not bound to take note of and amend its statutory enactments keeping in view the amendments made in England. But there cannot be any doubt whatsoever that while interpreting a restrictive statute, one may consider not only the past history of the concerned legislation but the manner in which the same has been dealt with by the legislature of its origin."

As one might be aware, one of the prime argument used against section 377 is that it is a colonial hangover. Therefore, the above quote is of huge relevance. Something which Justice Singvi looked over.

So although Singvi cites John Vallamattom repeatedly, Singhvi acts inconsistently with what it actually decides

Singhvi’s sudden zeal for judicial restraint and legislative deference seems hypocritical. He displayed no such restraint in his Red Lights-on-Cars judgment, which he rendered barely 48 hours beforeKoushal. In that judgment, Singhvi issued sweeping orders to regulate the abuse of red lights on government cars. The critics also point to several other Singhvi judgments where he had no qualms in overturning government regulations and policies without showing any modicum of judicial restraint.

how does one reconcile Koushal with Mithu? In Mithu, a constitution bench of five judges struck down Section 303 of the Penal Code. Mithu bench considered whether it ought to wait for Parliament to revise the Penal Code. In fact, an amendment for this purpose had been introduced in 1972. But the bill had lapsed. The Court decided that there was no point waiting any longer. As Justice Bhagwati put it, the “Section 303 was destined to die in court.” He even regretted that the Court had not acted sooner.

 Why Kaushal chose a different course seems inexplicable.