courtesy gb ============= From: [EMAIL PROTECTED] Date: Fri Feb 3, 2006 3:37 pm Subject: Supreme Court of India sends the 377 petition back to the Delhi HighCourt
HI All, Today has been a day of a small but a very substantial victory for the queer community in India. As we all know the peition seeking an amednemnt of S. 377 of the Indian Penal Code [to decriminalise consensual homosexual sex in private] by Naz Foundation India was dismissed by the Delhi HIgh Court in 2004, without even examining the issue. Thereafter an appeal in the form of a Special Leave Petition (SLP) was filed in Supreme Court against the Delhi HIgh Court decision. The Appeal has been going on for over a year now, and even recieved an extremely homophobic response from the Government last year, when in their reply the Government defended S. 377, and said that it was important to protect public morality. The case came up for hearing today. I was present in the Court with a few other activists and members of Naz India. Ms. Indira Jaisingh and Mr. Anand Grover (from the Lawyers Collective) appeared for Naz. Just as the case was announced, the Additional Solicitor General (ASG) (the flamboyant) Mr. Gopal Subramaniam (appearing for the Government/Union of India), told the Court, that "this petition merits admission" - which in legalese means that the Court should grant the interim reliefs prayed for in the petiiton (and here what we really wanted was to ask the Courts to send the case back to Delhi High Court, for a proper examination). So basically he was, surprise, surprise supporting us. Ms. Jaisingh appealed to the Judges (who included the Chief Justice of India - Justice Y K Sabrawal, Justice C. Thakker, and two other judges) that the issue in the Delhi High Court order, while dismissing the petition, was only of 'maintainability'. The Delhi High Court did not defend 377, but it said that Naz could not file this petition, as Naz cannot show how this section actually affects them, and held that Naz 'had no cause of action'. Ms. Jaisingh persuaded the Courts by asking "whether this matter should be sent back to the Delhi High Court" for reconsideration? Mr. Subramanium, supported us by asking the Courts to either here the issue before them in the Supreme Court or send it back to the Delhi High Court. He also categorically stated that "I dont think the reasoing [of the Delhi High Court decision in dismissing the petition in the first place] is sustainable". This is a huge turnaround from the Government, considering that in their affidavit filed last year they opposed this Appeal. But clearly Mr. Subramanium (who I think was not ASG at that time) must have taken a stand to not oppose this, and somehow convinced the law ministry. BUT LETS NOT READ TOO MUCH INTO THIS. The government is just saying that 377 is a case that needs to be heard in full detail, and it is not saying that 377 needs to go, or that homosexuality needs to be decriminalised. This is an extremely important distinction that needs to be made. Then the Lawyer appearing for JACK [this NGO that believes that AIDS is a myth, and has been opposing our efforts to amend 377 right from the Delhi High Court] got up and started opposing our petition. Justice Sabrawal told him that they were not going into the merits of the case and that they will get a change to present their argument when the matter is finally heard in the Delhi High Court. I am reproducing some parts of the order that was dictated, mind you all, I was in the end of a large court room, Justice Sabrawal is not particularly loud, and I was also very very excited...so what ever I can understand from my own notes is reproduced below, some things are not word-to-word, but communicate the jest of what was said. We will see the actual order soon. Justice Sabrawal: "The challenge in the Writ Petition No. ___ in the [Delhi] High Court was to the constitutional validity of S. 377 of the Indian Penal Code. The High Court without examining the [issue], dismissed the Writ Petition by the impugned order observing that there is no cause of action in favour of the Petition and the Petition cannot be filed [...for entertaing the challenge to the Constitutional validity of S. 377]. Additional S.G. contends that the matter needs examnination and is not of the nature that needs dismissal on the the grounds so stated [by the Delhi High Court]. We may note that the Petition is opposed by Respondent No. 6 [JACK]. We are however not examining the same on merit. But the matter does require consideration and is not such that can be dismissed on the grounds so stated [by the Delhi High Court]. In this view, we admit the SLP for [fresh decision by the High Court]. The Petitioners may make a prayer to the High Court for expeditious hearing." .......... Essentially the matter has been sent back to the Delhi High Court with a big slap on their face. They will have to re-look at the issue, a fresh session of hearings will take place. Due to Ms. Jaisingh's timely intervention in the end, wherein she stated that 'this case has been pending since 2001 and countries around the world have decriminalised such similar laws", Justice Sabrawal added the last line, allowing us to put pressure on the Delhi High Court to decide the case FAST (which may still mean a full two years). So there is a fresh battle ahead of us and no guarantees that the governtment will support us in the main battle. Lets get our act together now.... Best wishes from a lovely Delhi afternoon [suddenly Delhi looks so lovely and I think I saw a rainbow in the sky!!!], Alok Group Site: http://www.gaybombay.info ========================== This message was posted to the gay_bombay Yahoo! Group. Responses to messages (by clicking "Reply") will also be posted on the eGroup and sent to all members. 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