Can decriminalising be equated to legalising ?

<h1>Can decriminalising be equated to legalising ?</h1>Author: <a title="R.S. Praveen Raj" href="http://www.articlesbase.com/authors/r.s.-praveen-raj/143647.htm">R.S. Praveen Raj</a> While I hail the decision of Delhi High Court in respect of <a href="http://secularcitizen.net/2009/06/29/377-ipc-and-gay-rights/">Section 377 of IPC</a>, I'm worried that there is <a href="http://www.hindu.com/2009/07/03/stories/2009070358010100.htm">substantial likelyhood of misinterpretation of the High Court Decision</a>. A Division Bench of Justice A.P. Shah and Justice S. Muralidhar in its 105-page order said: “We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution. The spirit of the judgement is commendable. The decision is very clear - - -”It will be the denial of social justice and violation of fundamental rights if gays and lesbians are punished for consensual sexual acts committed in private owing to carnal desires, just citing a reason that they have a sexual orientation different from the majority and hence such act amounts to crime” But giving any extended scope to the above spirit of the judgement will not be good for the country. “We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15,” the judgment said clarifying further that “the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.” “A person below 18 would be presumed not to be able to consent to a sexual act,” the judgment added. If Section 377 of IPC is amended in line with the above judgement, it can prevent the misuse of Law to torture gays and lesbian. However misinterpreting the judgement as legalising homosexuality will have serious implications in the Society.About the Author: R.S. Praveen Raj
Scientist - IP Management & Technology Transfer
National Institute for Interdisciplinary Science & Technology (NIIST),
(Formerly RRL, Trivandrum), Industrial Estate P.O., Pappanamcode,
Thiruvananthapuram – 695 019.

<a target="_blank" href="http://secularcitizen.net/">http://secularcitizen.net/</a>Article Source: <a href="http://www.articlesbase.com/">ArticlesBase.com</a> - <a href="http://www.articlesbase.com/national,-state,-local-articles/can-decriminalising-be-equated-to-legalising--1010745.html" title="Can decriminalising be equated to legalising ?">Can decriminalising be equated to legalising ?</a>

While I hail the decision of Delhi High Court in respect of Section 377 of IPC, I'm worried that there is substantial likelyhood of misinterpretation of the High Court Decision.

A Division Bench of Justice A.P. Shah and Justice S. Muralidhar in its 105-page order said: “We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.

The spirit of the judgement is commendable. The decision is very clear - - -”It will be the denial of social justice and violation of fundamental rights if gays and lesbians are punished for consensual sexual acts committed in private owing to carnal desires, just citing a reason that they have a sexual orientation different from the majority and hence such act amounts to crime”

But giving any extended scope to the above spirit of the judgement will not be good for the country.

“We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15,” the judgment said clarifying further that “the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

“A person below 18 would be presumed not to be able to consent to a sexual act,” the judgment added.

If Section 377 of IPC is amended in line with the above judgement, it can prevent the misuse of Law to torture gays and lesbian.

However misinterpreting the judgement as legalising homosexuality will have serious implications in the Society.

R.S. Praveen Raj Scientist - IP Management & Technology Transfer National Institute for Interdisciplinary Science & Technology (NIIST), (Formerly RRL, Trivandrum), Industrial Estate P.O., Pappanamcode, Thiruvananthapuram – 695 019. http://secularcitizen.net/

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Article Tags: Gays, Social Justice, Consensual Sex

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