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WTF India? Gay relations recriminalized

IMST

If Charlie Parker Was a Gunslinger, There'd Be a W
IMST
Joined
Jul 5, 2007
Messages
6,326
India's supreme court decided that a previously struck down colonial era law criminalizing sodomy and such is still the law of the land (thanks for that dead Britons, btw). Surprising move given their recent rulings that were generally more progressive.

Wonder how long its gonna take to fix this one.

(Ads in link may be NSFW)
http://www.joemygod.blogspot.com/2013/12/india-court-recriminalizes.html
 
Yep, breathtaking.

I have a sneaking fear that some might also see it as an excuse for vigilantism.
 
I actually see this rather differently, and think this decision may be sensible. Wait.........hear me out....... :)

This decision wasn't about the content, but about how it was arrived at. Homosexuality had been decriminalised by a lower court..........not by parliament, but by the judiciary. In my own personal view, this isn't the right way to make that sort of decision, and the highest court has simply asked the parliament to have a look at this.

Hopefully, parliament will come to the right decision, quickly, and the ridiculous notion of criminalising sex will be consigned to history. But parliament must do it, not a court.

Mike
 
MikeG said:
I actually see this rather differently, and think this decision may be sensible. Wait.........hear me out....... :)

This decision wasn't about the content, but about how it was arrived at. Homosexuality had been decriminalised by a lower court..........not by parliament, but by the judiciary. In my own personal view, this isn't the right way to make that sort of decision, and the highest court has simply asked the parliament to have a look at this.

Hopefully, parliament will come to the right decision, quickly, and the ridiculous notion of criminalising sex will be consigned to history. But parliament must do it, not a court.

Mike
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You feel human rights violations in the law shouldn't be resolved by courts even when legislatures aren't willing to take care of it. Thanks for contributing.
 
IMST said:
......Thanks for contributing.
Click to expand...

Thanks for patronising.

Oh, and thanks for setting up a strawman, too. Didums, some people are soooo threatened by others disagreeing with them.

I want the same outcome as you, I simply would prefer to see laws made by parliaments and politicians rather than by judges and lawyers. So shoot me.
 
MikeG said:
Thanks for patronising.

Oh, and thanks for setting up a strawman, too. Didums, some people are soooo threatened by others disagreeing with them.

I want the same outcome as you, I simply would prefer to see laws made by parliaments and politicians rather than by judges and lawyers. So shoot me.
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Did the Indian Supreme Court make that legal too?
 
MikeG said:
Thanks for patronising.

Oh, and thanks for setting up a strawman, too. Didums, some people are soooo threatened by others disagreeing with them.

I want the same outcome as you, I simply would prefer to see laws made by parliaments and politicians rather than by judges and lawyers. So shoot me.
Click to expand...

It was either patronize or call you an *******. Felt the first was more polite. The second was what I was feeling.
Good news, India will have an incredibly harsh penalty for basic human behavior, but at least they'll have style points if they ever get around to rectifying it.
 
IMST said:
You feel human rights violations in the law shouldn't be resolved by courts even when legislatures aren't willing to take care of it. Thanks for contributing.
Click to expand...
...and you feel that judges should be able to ignore and flout the law? "I disagree with this law, so I'm going to ignore it". Works fine when the judges are ignoring laws that you happen to think are wrong; doesn't work so well when the judges are ignoring laws that you think are right.

People actually think so little about such issues; just gut-level emotional reactions, without considering the ramifications. In any democratic nation, the judiciary doesn't have the right to re-write the laws. They can only interpret and enforce the laws.

If a particular judge makes a ruling that is in contravention of the law, what happens? It is appealed, and a higher court affirms that the ruling is, in fact, not according to that country's laws, and there must be a new trial.

What you are advocating for is a system where any judge, if they disagree with a particular law, can just go ahead and make their own law. Which cannot possibly work.

India needs to change it's laws. And the judiciary can't do that. Judges can put pressure on the government to change the laws. Judges can make rulings that state they disagree with the law in question, and are enforcing it unwillingly. Judges can give the smallest possible sentences for offenses that they think should not be illegal. But they cannot change the laws.

Same thing in Canada, the U.S., and any other democratic power with which I'm familiar. There are laws in Canada that I disagree with...but that doesn't mean that judges can ignore those laws. Nor can judges rewrite those laws. They must enforce them as they are, while advocating for change. For example, I personally think that drugs should be legalized (and controlled and taxed in much the same way as alcohol and tobacco); I know that there are judges who agree with my position. But that doesn't mean that if someone's caught with cocaine, the judge can say, "Hey, you're guilty of breaking the law, but I'm going to ignore the law and let you go."

If he did, the only results would be that A) he would lose his job and B) there would be an automatic appeal, and a whole new trial, where the person would inevitably be convicted.

Yes, this situation in India is terrible. But it's the fault of the people making the laws; not the people enforcing them.
 
I'm no expert in Indian Constitutional Law, but if it works anything like US law, the case could easily have been ruled as "the lower court did not have the authroity to reverse this law, but the law itself is unconstitutional under Part III Sections(?) 14 and of the Indian constitution:

14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Click to expand...
http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm

So if the Supreme Court wanted to consider the question (if it works at all like the US) they could have said that banning same-sex marriage is discrimination against citizens on grounds only of sex and noshed it.
 
Question to you, OP aka arrogant western cultural fascist: who the hell are you to impose your values on India?
 
Darth Rotor said:
Question to you, OP aka arrogant western cultural fascist: who the hell are you to impose your values on India?
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That's covered in the parenthetical. The anti-gay law is the arrogant western cultural fascism forced in by colonials.

Which, in this case, isn't actually wrong.
 
Have to agree with several others. The law is wrong and needs changing, but it is the responsibility of those that represent the people in Parliament to do that, not some Judge.

I would hate to live in a country where Judges could rewrite the law on a whim, that would be incredibly scary.
 
PhantomWolf said:
Have to agree with several others. The law is wrong and needs changing, but it is the responsibility of those that represent the people in Parliament to do that, not some Judge.

I would hate to live in a country where Judges could rewrite the law on a whim, that would be incredibly scary.
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You mean, like California, where same-sex marriage bans were declared unconstitutional by judges rather than repealed by the legislature.

That doesn't make it seem too scary to me.

In fact, I think a good cornerstone of a free society is that basic rights and protections should be constitutionally guaranteed to all citizens regardless of their popularity with the majority of the population, and should that majority vote representatives into the legislature who pass laws taking away those rights and protections, the judiciary should declare those laws void.
 
PhantomWolf said:
I would hate to live in a country where Judges could rewrite the law on a whim, that would be incredibly scary.
Click to expand...



Hmmm, not sure judges can rewrite the law. They can strike down laws that don't pass constitutional muster. Legislatures are then free at that point to craft new laws which meet the necessary constitutional requirements.
 
Don't they know that the best system is to trust nine unelected, lifetime appointees with supreme power?
 
quixotecoyote said:
You mean, like California, where same-sex marriage bans were declared unconstitutional by judges rather than repealed by the legislature.

That doesn't make it seem too scary to me.

In fact, I think a good cornerstone of a free society is that basic rights and protections should be constitutionally guaranteed to all citizens regardless of their popularity with the majority of the population, and should that majority vote representatives into the legislature who pass laws taking away those rights and protections, the judiciary should declare those laws void.
Click to expand...

Corsair 115 said:
Hmmm, not sure judges can rewrite the law. They can strike down laws that don't pass constitutional muster. Legislatures are then free at that point to craft new laws which meet the necessary constitutional requirements.
Click to expand...

However here you are talking about something rather different. A Judge can determine that a law is illegal and should be struck down, which is what just happened the other way in Australia, but in India, the Judge went further then that, the original ruling was that the law, which was legal, just should no longer apply. The Judge changed the law. That was not his right to do so.

Take this into other fields. Say a Judge decides that if a woman is raped it was her own fault, and so pushes through a ruling that rape is no longer a crime? When Judges have the ability to strike down any law they don't like, it starts to create a scary precedent.
 
Wolfman said:
...and you feel that judges should be able to ignore and flout the law? "I disagree with this law, so I'm going to ignore it". Works fine when the judges are ignoring laws that you happen to think are wrong; doesn't work so well when the judges are ignoring laws that you think are right.

People actually think so little about such issues; just gut-level emotional reactions, without considering the ramifications. In any democratic nation, the judiciary doesn't have the right to re-write the laws. They can only interpret and enforce the laws.

If a particular judge makes a ruling that is in contravention of the law, what happens? It is appealed, and a higher court affirms that the ruling is, in fact, not according to that country's laws, and there must be a new trial.

What you are advocating for is a system where any judge, if they disagree with a particular law, can just go ahead and make their own law. Which cannot possibly work.

India needs to change it's laws. And the judiciary can't do that. Judges can put pressure on the government to change the laws. Judges can make rulings that state they disagree with the law in question, and are enforcing it unwillingly. Judges can give the smallest possible sentences for offenses that they think should not be illegal. But they cannot change the laws.

Same thing in Canada, the U.S., and any other democratic power with which I'm familiar. There are laws in Canada that I disagree with...but that doesn't mean that judges can ignore those laws. Nor can judges rewrite those laws. They must enforce them as they are, while advocating for change. For example, I personally think that drugs should be legalized (and controlled and taxed in much the same way as alcohol and tobacco); I know that there are judges who agree with my position. But that doesn't mean that if someone's caught with cocaine, the judge can say, "Hey, you're guilty of breaking the law, but I'm going to ignore the law and let you go."

If he did, the only results would be that A) he would lose his job and B) there would be an automatic appeal, and a whole new trial, where the person would inevitably be convicted.

Yes, this situation in India is terrible. But it's the fault of the people making the laws; not the people enforcing them.
Click to expand...

Well put. Let's see if OP flees the thread.
 
PhantomWolf said:
However here you are talking about something rather different. A Judge can determine that a law is illegal and should be struck down, which is what just happened the other way in Australia, but in India, the Judge went further then that, the original ruling was that the law, which was legal, just should no longer apply. The Judge changed the law. That was not his right to do so.

Take this into other fields. Say a Judge decides that if a woman is raped it was her own fault, and so pushes through a ruling that rape is no longer a crime? When Judges have the ability to strike down any law they don't like, it starts to create a scary precedent.
Click to expand...

It's not different at all.

They didn't say "the law is legal but I'm changing it" they ruled it unconstitutional (as applied to gay sex at least).

In 2009 the Delhi High Court ruled unconstitutional a section of the penal code dating back to 1860 that prohibits "carnal intercourse against the order of nature with any man, woman or animal" and lifted the ban for consenting adults.
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http://www.reuters.com/article/2013/12/11/us-india-rights-gay-idUSBRE9BA05620131211
 
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quixotecoyote said:
You mean, like California, where same-sex marriage bans were declared unconstitutional by judges rather than repealed by the legislature.

That doesn't make it seem too scary to me.

In fact, I think a good cornerstone of a free society is that basic rights and protections should be constitutionally guaranteed to all citizens regardless of their popularity with the majority of the population, and should that majority vote representatives into the legislature who pass laws taking away those rights and protections, the judiciary should declare those laws void.
Click to expand...

Judges can't get close to overturning old, settled legislation because of "changing times" until the times change, which is to say, decades of persuasion have passed. Better to keep going a few more years and change the laws properly rather than harden hearts of the no-longer-crumbling resistance, dragging things out.

I have a soft place in my heart for freedom increasing by force, including judicial fiat, but it's still dangerously a charlatan's game. Next time, the seductive charismatic might not be doing things you want, but tough -- they've got a big mass of public opinion on their side, need for legislation, much less constitutional amendment, be damned.

Like, ohhh, I don't know. Spying on Americans without warrants, say, which is still pretty popular?

Why do they get away with it, in the courts? Anyone? Anyone?
 
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Beerina said:
Judges can't get close to overturning old, settled legislation because of "changing times" until the times change, which is to say, decades of persuasion have passed. Better to keep going a few more years and change the laws properly rather than harden hearts of the no-longer-crumbling resistance, dragging things out.

I have a soft place in my heart for freedom increasing by force, including judicial fiat, but it's still dangerously a charlatan's game. Next time, the seductive charismatic might not be doing things you want, but tough -- they've got a big mass of public opinion on their side, need for legislation, much less constitutional amendment, be damned.

Like, ohhh, I don't know. Spying on Americans without warrants, say, which is still pretty popular?

Why do they get away with it, in the courts? Anyone? Anyone?
Click to expand...

That's quite the ramble, but it doesn't seem all that relevant to what you quoted.

You quoted me saying that constitutionally guaranteed freedoms should be backed up by judicial rulings regardless of legislative preferences or popular opinion.

How you got from there to wild eyed charismatics running amok is anyone's guess.
 
Sadly, I'm not surprised. I have several Indian co-workers. Every single one, male and female, have said on numerous occasions that they would literally rather die than go back to that hell hole.
 
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