For the record, I think this woman’s subtle smile (like the thumbs up as well) is one of the most beautiful things in the world today. Let’s get to the news, though…
Yesterday was a extraordinary day for the GLBTQ community in the second most populated country in the world: the Delhi High Court, whose decision covers millions and millions of people throughout the nation, decriminalized homosexuality. Originally, same-sex relations could earn someone a prison sentence of up to ten years; now, consensual sex between two people of the same gender is legal.
In the last 24 hours or so, there was a significant amount of confusion as to whether or not the Delhi High Court’s decision covered only the Delhi State, or the entire nation. Most believed it was only the Delhi State, but today, Joe Jervis, over at Joe. My. God., published links to articles in the India Times, which indicate that the decision does apply nationwide as the result of another ruling in 2004. From the India Times:
In Kusum Ingots vs Union of India, a three-judge bench of the Supreme Court had ruled: “An order passed on writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, will have effect throughout the territory of India subject of course to the applicability of the Act.”
Thursday’s Delhi high court verdict is also on the constitutionality of an Act of Parliament, which has jurisdiction throughout the country, and the Central government was anyway party to the case. Since the Indian Penal Code 1860 is applicable throughout the country, except Jammu and Kashmir, the final order of the Delhi high court questioning the constitutionality of Section 377 will have effect far beyond the capital, in terms of the 2004 SC judgment.
While expanding the territorial jurisdiction of high courts in such cases, the SC took cognizance of the principle contained in Article 226(2), which empowers a high court to issue directions to entities located outside its territory.
There is another reason why homosexuals outside Delhi can derive strength from the 2004 SC ruling on territorial jurisdiction: This is the first ever pronouncement on the constitutionality of Section 377. As a result, there is no question of any existing judgment conflicting with it.
The response among GLBTQ activists and advocates in India has been one of pure elation, as homosexuality has been illegal there since colonial days of the 1850s, related to Section 377 of the Indian Penal Code. Section 377 forbade “carnal intercourse against the order of nature,” but now, the Delhi Court has, in essence, ruled that homosexuals are, in fact, part of the order of nature. Also, from the India Times:
Supreme Court lawyer and gay activist Aditya Bandhipadhyay said, “It opens for us opportunity to claim all civil rights denied to Lesbian Gays Bisexual and Transgender people for 160 years. It also shows very positively that our judiciary values and human rights are not swayed by miopic public reaction and the tyranny of the majority,”
Arif Jafar, gay rights activist and head of Naz foundation, Lucknow said, “I think it is a good news after a long time. The efforts of so many people have finally been rewarded. Cases of harassment and blackmailing by police will come down.”
The India Times, in an article published today suggests that anywhere from 2% to 13% of the population of India is homosexual. With a recent estimate of India’s population at 1.15 billion people, this suggests that anywhere from 23 million to 149.5 million people are GLBTQ.
