Hey Aditya Thank you for this. This makes things a little clearer now - but there are still people who are quite misinformed about the judgement and its implications of this judgement. Is it possible for you, mayur, alok etc to think about some drive to educate us about the ruling. I am not sure how one should go about it, but i can spam people. Can you mail us a structured - pamphletey kind of document. I would be happy to take print outs and distribute it to whoever i can. Maybe there is something already out there. Can you please point it out for me? Cheers R
--- On Sat, 7/4/09, Aditya Bondyopadhyay <adit.b...@gmail.com> wrote: From: Aditya Bondyopadhyay <adit.b...@gmail.com> Subject: Re: [lgbt-india] territorial issues To: lgbt-in...@yahoogroups.com Cc: gaybom...@yahoogroups.com, gay_bombay@yahoogroups.com, khush-l...@yahoogroups.com, movenp...@yahoogroups.com, gayde...@yahoogroups.com Date: Saturday, July 4, 2009, 9:58 AM Hi, taking a short cut and cut-pasting what I wrote to Raj Aiyar on the same question he sent me on facebook: Raj's Question: Hey Aditya, here are my searing questions du jour: does the Delhi High Court verdict only cover Delhi? Do other states have to await their own high court/Indian Supreme Court decision on reprealing IPC 377, citing the Delhi precedent? Or a parliamentary act decriminalizing same sex love nationwide? Hi Raj, it is now settled law, because we follow the common law system, that a ruling by a high court is valid all over India till: 1] It is overruled by a conflicting judgement of another high court, 2] It is overruled by a higher bench of the same or any other High Court, 3] It is stayed by the Supreme Court, 4] It is overturned by the Supreme Court The parliament has only been given a suggestion because parliament is immune from the court's jurisdiction. It can take up the suggestion, or it can reject the suggestion. However there is nothing stopping the parliament to legislate on the issue, and do note, that legislation can be to uphold the judgement, or to negate the effect of the judgement (Happened before in the Shah Banoo Case). If it is the latter, i.e. if the legislation negates the judgement, then it becomes open for us to go to the court agauin and reopen the issue of constitutionality of the new legislation. Hope that answers the question...Best, Aditya B On 04/07/2009, Vikram D <vg...@yahoo. co.uk> wrote: > > > > This question about the 377 verdict only being applicable in Delhi keeps > coming up. I really am not very impressed by it - its the sort of point > that's being made by people who feel the need to make a point to show how > clever they are. Its certainly not the spirit in which the judgment was > fought, has been written or is being received by the media. > > Still, since its being raised, here's my attempt at a response. And not > being a lawyer, I'll leave it to a legal writer to make the legal point: > > > http://timesofindia .indiatimes. com/India/ Is-HCs-gay- ruling-applicabl > e-to-all- states/articlesh ow/4735189. cms > > I think the fairest that can be said is that the matter is unclear, and can > only conclusively be decided in the Supreme Court - where this matter is > going to end up anyway. > > But I'll just make two points. One, courts in India cite the verdicts of > other courts all the time to help them decide the law, and a judgment of > this quality from a court as important as the Delhi High Court and a judge > as respected as A.P.Shah is bound to be studied and perhaps cited by other > judges. Shah in a sense has set down a gauntlet - this is what one important > part of the judiciary feels on the issue, and it cannot be lightly dismissed > by any court. > > As a sidelight, here's an example of how this case had an impact in another > High Court's jurisdiction even before it was decided. A couple of years back > a young British man called Desmond Hope was arrested by the Goa police and > charged under 377. He had been doing nothing wrong, just chatting with an > Indian guy, but the police had stopped him to see if they could get some > money off him by claiming he had broken some small rule (I think it was > about the type of bike he had rented) - a common scam in Goa. > > But when they realised he was gay, they saw the chance of making real money > and claimed he was sleeping with the Indian guy who was a minor (which he > wasn't). The Indian guy was suitably terrified into helping the police. > Desmond was put in jail for three months as lower courts refused to give him > bail because 377 was such a seious offence. Desmond's partner had got in > touch with us and we helped take the bail application to the Goa High Court > where Justice Britto immediately granted it on the grounds that: > (a) the Indian guy was not a minor so there was no child sex abuse angle, > and > (b) 377 was a law that was currently being debated in the Delhi High Court > and could be on its way out, so it was not as serious an offence as the > lower courts thought. > > Desmond got bail, and later managed to get his case dismissed entirely. So > if this case can help in the jurisdiction of another High Court even before > it was delivered, please consider its impact when it has been decided and > with a judgment of such thorough, constitutionally grounded quality. > > My second point is that this whole territoriality debate is really sort of > pointless. This case was never about specific rights in a particular place > and time, but about a basic human rights issue. And it has been treated in > that way by the Delhi High Court. > > The case is not about specific people living in Delhi whose lives are being > affected by the law. And the decision will not directly change the lives of > people in Delhi. There were many queer people living in Delhi before the > decision who will continue living in the same way. And many of them were > suffering from problems and harassment and they will sadly continue to > suffer from them since those who are persecuting them can find other ways > than the threat of 377. > > This might seem to suggest this decision is pointless, but it is anything > but pointless. If it seems symbolic that only underlines how important > symbolism is. Before the judgment all queer people in Delhi and across the > country were burdened with the knowledge that they were technically > criminals. Today, Justices Shah and Muralidhar have given us powerful reason > to know we are not, and that changes everything. Its influence may be > indirect but it will change our lives in ways we cannot yet imagine. > > And this change has been understood as such in India. Yesterday morning I > went and bought every paper, English, Hindi, Marathi, Gujarati that I could > find here in Bombay and the decision was front page in nearly every one, and > they all clearly understood its historic impact even though they were not in > Delhi. > > The way the judgment is being received and understood across the country > makes territoriality irrelevant. As Pratap Bhanu Mehta, a leading > intellectual (who is quite straight, as far as I know!) said in the best > op/ed piece yet written, in the Indian Express, "its about all of us." > > Vikram > > > Vikram > > [Non-text portions of this message have been removed] > > > -- Do not print this mail unless really necessary. Save paper, save trees..!! If you loose your way while SCUBA diving, the safest direction to head for is UP..!!! 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