Talk:Homosexuality in India

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Untitled[edit]

I'm baffled by the statement Homosexual behavior itself is not against the law, while the act technically is. What "homosexual behavior" is not against the law, if homosexual sex is? Hand-holding? Kissing? Shopping? Or does the sentence mean to say "A homosexual orientation itself is not against the law"? --Angr (t·c) 09:03, 30 November 2005 (UTC)

Probably it alludes to eunuchs, who have had a long history running across centuries and transvestites?? and btw, would a discussion about eunuchs be par for this article?? --Gurubrahma 10:27, 30 November 2005 (UTC)
It probably alludes to the fact, that homosexuality is not specifically mentioned in any Indian statue. So technically, a person cannot be prosecuted for being gay. The law that criminalises homosexuality actually mentions unnatural sex and sodomy and actually equates homosexuality with sodomy (an age-old misconception). See http://www.hsph.harvard.edu/Organizations/healthnet/SAsia/suchana/0909/rh374.html

--PamriTalk 12:14, 30 November 2005 (UTC)

I believe I read a (very small) article in a paper (around the time of the petition) about how NGOs for street kids depended upon Sectin 377 for prosecuting homosexual child abusers in India, since the terms for rape are defined only for penile-vaginal intercourse.--Sshankar 08:45, 9 June 2006 (UTC)

Shankar, Shankar, I am bringing this up is to counter whatever article your read about NGO's relying on 377 to prosecute child molesters. And by the way, being gay and being a child molester are two TOTALLY DIFFERENT THINGS-- and a law that conflates them both is lunatic, bigoted and draconian, ESPECIALLY considering the amount of sexual violence directed towards women.

Furthermore, please consider that the vasty majority of sexual assaults in the world are perpetrated by adult males on younger females. This is the case both in the East and the West, and there is a substatial body of research demonstrating that quite solidly. Certainly, male assaults on male children do happen, but their numbers are eclipsed by the amount of assaults against females. Even the majority of the charges levied against the Catholic Church were directed to men attaking girls.


But we all know that India is riddled with sexual predators accesing underage girls all the time. It is quite blatant and I personally am certain that the police are in on it. That is just my opinion, but one formed not without good reason. Young women are mistreated, abused, molested and trafficed all over India, and no effort is made by the police to do a single thing about it. —Preceding unsigned comment added by 75.72.234.153 (talk) 20:24, 11 April 2009 (UTC)

I was only stating what I had read and remembered. I certainly do not believe that all gay people are child molesters. Please read what I have written before you jump to conclusions. --Sshankar (talk) 07:42, 22 June 2009 (UTC)

Legal challenge[edit]

"However, this does not rule out the possibility of some other High Court ruling on this section or even the Supreme Court in a "Public Interest Litigation" (PIL)." ...Surely that is exactly what the 2003 decision on that NGO's standing to litigate the issue does rule out? I don't know Indian law, but that would be my understanding of the effect of the decision from the paragraph as it stands. ----


This article has several inaccuracies. According to Hindu Marriage Law, as long as you can prove previous precedence for a marriage, it can be registered as a "lawful" wedding. I don't remember the exact verbage, but I studied this in college. I do know of same-sex couples in India who are legally wedded.

Added History stub[edit]

Hopefully the citations are relevant.

I hope someone can purchase/borrow the book mentioned in the section, and add some more. It's still very meagre.

I hope this much was still up to good standards. --Sshankar 08:03, 14 June 2006 (UTC)

Fair use rationale for Image:SamesexIndia.jpg[edit]

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Image:SamesexIndia.jpg is being used on this article. I notice the image page specifies that the image is being used under fair use but there is no explanation or rationale as to why its use in this Wikipedia article constitutes fair use. In addition to the boilerplate fair use template, you must also write out on the image description page a specific explanation or rationale for why using this image in each article is consistent with fair use.

Please go to the image description page and edit it to include a fair use rationale. Using one of the templates at Wikipedia:Fair use rationale guideline is an easy way to insure that your image is in compliance with Wikipedia policy, but remember that you must complete the template. Do not simply insert a blank template on an image page.

If there is other fair use media, consider checking that you have specified the fair use rationale on the other images used on this page. Note that any fair use images lacking such an explanation can be deleted one week after being tagged, as described on criteria for speedy deletion. If you have any questions please ask them at the Media copyright questions page. Thank you.

BetacommandBot (talk) 04:48, 24 January 2008 (UTC)

issues with the page[edit]

I just deleted some of the external links and edits out other parts to organization that read like an ad as well cite to their webpage in the article itself. Talk about issues on an encyclopedia. This is not for those seeking some sort of guidance or what have you. Wikipedia is an encyclopedia that documents issues. Furthermore, the info on naz reads like an advert for the group, perhaps copy+pasted. That needs to go through. It looks someone with a vested interest on this issue added it. Where's the criticism of homsexuality in india and support for 377?? God knows there is opposition to those getting it repealed. Ive seen quotes in the newspapers. Lihaas (talk) 15:41, 31 August 2008 (UTC)

The article starts Homosexuality in India is generally considered a taboo subject by both Indian civil society and the government. Is there a bigger critcism than it being a taboo. DockuHi 22:19, 13 September 2008 (UTC)
There are whole section of advocacy. One line in the lead suffices for criticism? The legal status mentions demands for change but nothing on those opposing in india? Lihaas (talk) 23:53, 13 September 2008 (UTC)
Third paragraph: Sexual acts 'against the order of nature' remain illegal in India, though the government no longer seeks to prosecute adults engaging in private consensual homosexual acts. Well, I do understand your concern. Are you having any particular criticism from political parties, social and religious organisation or notable individuals in mind? DockuHi 00:54, 14 September 2008 (UTC)

yep, i know that was the case. but i do indeed have some recollection of opposition, i just dont remember the details. Lihaas (talk) 03:53, 14 September 2008 (UTC)

Lihaas On almost every Wiki page there are interest groups of one sort or another providing links to their sites, its an essential feature on Wiki... that being the sace, what's your problem with Naz? Yes, there are people who want that link, and will find it. Wiki is not an encyclopedia, its an online user moderated info-board. No one on Wiki, not even you, has the credentials to claim that this is an encyclopedia, if they did, they'd have a book, not a user-moderated info page.

Why is there a problem with there being gay advocacy for Indians on a page about Gay Indians. I am a gay Indian, and evidently you're not... I think I have more of a sense of what being gay in India is like than you do.

If you want a page to mobilize against Gays, then make a new Wiki page and acall it "Homophobia in India"... Or, if that's too blatant, call it something more manicured, like "Puritans for India's Purity". Either way, dont assume that just because the Naz foundation is represented here, that somehow violates some rule. —Preceding unsigned comment added by 75.72.234.153 (talk) 20:36, 11 April 2009 (UTC)

One more thing Lihacs, Was Malhotra's dehumanizing comment not enough of "criticism" against gays for you? Doesnt he represent the side you want to have portrayed here?

If you really want the voice of anti-gay India, then post something up about the violence directed against Deepa Mehta for producing "Fire". I was in India when "Girlfriend" was releases. If you want a voice for anti-gay India, then why dont you get some info on the people who were attaking movie theaters with their torches and burning tires, or maybe you can interview Babu Bajrangi ... there's the voice of anti-gay India for you. If you want something more "civil", you'll be hard pressed to find it, because no matter how hard they try to hide it, bigotted people are irrational and prone to violence.

Sources[edit]

http://en.wikipedia.org/w/index.php?title=Homosexuality_in_India&diff=238358598&oldid=238357518 http://en.wikipedia.org/w/index.php?title=Homosexuality_in_India&diff=238352940&oldid=238352254

The above 2 edits links to sources that advertize the cause. If one wants to make a statement then a source that doesn't have a conflict of interest is much more suitable.

Also the NY party is fringe and doesn't serve the whole topic of that says "in india."

Are homosexual acts legal in all of India?[edit]

I'm confused. Wikipedia and many articles say that it's now legal throughout the country. However, the Associated Press reports the law change only applies to New Dehli [1]. Who's right? bob bobato (talk) 14:06, 2 July 2009 (UTC)

good question. This probably has to do with the Jurisdiction of the Delhi High Court. guess the AP report is more accurate. --Like I Care 14:50, 2 July 2009 (UTC)
Well India has a single constitution and the other High Courts cannot contradict this ruling. The High courts in India have original jurisdiction over all constitutional matters. Only the Supreme Court of India may nullify this ruling. Also the jurisdiction of Delhi High Court would include the Parliament of India that originally enacted this section of the Indian Penal Code. The Delhi High Court has ruled it as a violation of Fundamental Rights which would make this judgement valid in all of India. The accused can just state this judgement to stop any further prosecutions. The police however may still book a case in other states. So its basically the judgement could possibly apply directly to all of India due to the Original jurisdiction powers else it would indirectly apply to all of India since it would make prosecutions under this law impossible. Andy anno (talk) 18:55, 2 July 2009 (UTC)--—Preceding unsigned comment added by Andy anno (talkcontribs)

So wait:

  1. Are you saying that a ruling on constitutional matters by any High Court in the country would bind all of the other High Courts to its decision?
  2. Or is it just the Delhi High Court that is uniquely able to strike down legislation passed by Parliament?
According to the Delhi High Court's Website [2], the court has jurisdiction on all matters if the petitioner is resident wholly or partially in its area. All High Courts have the right to hear constitutional matters. Since this matter is of a uniform constitution, any judgement by one court is unlikely to be contradicted by a court of another state. Only the Supreme Court can strike down this judgement. There have been certain inter-state river disputes where the Government of one state has been listed as a valid respondent in the High court of the other state even though the violating dam was outside its jurisdiction. If a Central government law is struck down by any constitutional court, it would apply across India as opposed to say striking down a law passed by the Delhi state government.

Also, the court opinion states:

"This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion."
[1] (Paragraph 132)

What does this mean? -- ran (talk) 18:46, 2 July 2009 (UTC)

This could mean that this judgement would read as an amendment to Section 377 unless the parliament formally changes the wording of the law.Andy anno (talk) 18:55, 2 July 2009 (UTC)
It means that 377 is officially repealed as of 2 July 2009, unless Parliament chooses to reinstate it (in its original or a modified form). However, what is certain is that all sexual acts between consenting adults, when performed in private, whatever the gender combination of said adults, are no longer criminal. And this applies across the country - it was a national law that was found unconstitutional, and the result of its repeal apply nationally. That's how Indian jurispridence works. Jasepl (talk) 19:35, 2 July 2009 (UTC)

Okay, so am I correct in saying the following?

  • The Delhi High Court has jurisdiction over only Delhi, but its rulings on the constitutionality of national laws are binding across the entire country, This is also true for any other High Court.
    • I found a site that says:
    • "The judgment of a State High Court are binding on itself and on all subordinate courts and tribunals in the State. However a numerically larger bench of the High Court can overrule a decision of a numerically smaller bench. Judgments of a High Court are not binding on another High Court or on courts subordinate to another High Court, but are of great persuasive value."
    • [3]
    • Does this statement not apply to interpretations of national law and/or interpretations of the national constitution?
  • There's no parliamentary supremacy in India (or at least none, in this issue). As of today the law has no effect in the entire country.

If the above is correct then I think it's time to revert all of my edits. -- ran (talk) 19:46, 2 July 2009 (UTC)

if u guys are interested in the original ruling, it is here. --Like I Care 20:03, 2 July 2009 (UTC)
No the Parliament is not the Final word on the law. The Supreme Court of India has ruled in earlier cases involving civil liberty (Especially the post Emergency Maneka Gandhi Vs the Union of India case) that it has a right to review all laws and constitutional amendments to make sure that they are in compliance with certain basic inalienable rights(like life, liberty and equal rights).Also if any national laws are held unconstitutional by the constitutional courts(High Courts and Supreme Courts) it affects the entire country not just Delhi since the constitution of India is a unique document not different copies for different states. I would insert the caveat that the state of Jammu and Kashmir does have its own constitution that overrules a significant number of laws in the Indian constitution. So the "great persuasive value" argument would apply to the J&K High court not the other states and Union territories. Also the court has said it is only "clarifying" the law as opposed to amending the law. This might indicate that while the wording of the law hasn't changed its application and interpretation has changed in the entire territory under Indian administration including Jammu and Kashmir.Andy anno (talk) 20:55, 2 July 2009 (UTC)
As a follow up this Indian media report [4] quotes a lawyer that while it may not be directly applicable in other states, mere citation of this judgement as a precedent would be sufficient to stop criminal proceedings in other states. This matter had better be left to legal experts and until the dispute is resolved, the applicability conflict should also find its mention in the article instead of the current wording that says it DOES NOT apply elsewhere.Andy anno (talk) 21:44, 2 July 2009 (UTC)

Regarding that the report that you posted, I'd just like to point out that:

  1. The lawyer quoted is described as a "gay rights activist." So he might be framing the applicability issue in a way favorable to the gay rights cause.
  2. The lawyer begins by saying "It will be applied only in Delhi ..."
  3. The next part, "[it] can be cited everywhere in the country. It is a precedent." would describe a strongly persuasive case just as aptly. If decisions of one High Court are strongly persuasive for (but not binding on) other High Courts, a party can and should cite it as a precedent if a similar case comes up before another High Court, but the other High Court doesn't have to follow it (it's very likely to, but legally speaking it doesn't have to).

I agree that the applicability issue should be worked into the article rather than simply stating that the law "does not" apply outside Delhi. Perhaps a bit more research into the issue of applicability is in order before we can arrive at a more definitive version, in order to avoid running afoul of WP:NOR. And again, I defer to the experts on Indian law here on how the final version should be written. The above are just my two cents. -- ran (talk) 23:14, 2 July 2009 (UTC)

I agree that the applicability issue should be worked better into the article. Basically, in Indian law, decision of one High Court do not bind other High Courts. Even if a particular High Court holds a law to be unconstitutional, other High Courts are free to disagree and they often do. A case in point: in 1987, the High Court of Bombay held S. 309 of the Indian Penal Code (which criminalises an attempt to commit suicide) to be unconstitutional. In 1988, the High Court of Andhra Pradesh disagreed, and found that the section did not violate the Constitution. That is perfectly normal, and it could well occur even in the present case. All the same, it's misleading to say that the law has only been struck down in Delhi.
I'd suggest that we say something along the lines of "In Naz Foundation v Government of Delhi, the High Court of Delhi held that S. 377 of the IPC was unconstitutional to the extent it criminalised consensual sexual acts between adults. Criminalising non-vaginal intercourse, it held, violated an individual's fundamental right to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India. This decision does not bind courts outside Delhi, although it has persuasive value." -- Arvind (talk) 23:46, 2 July 2009 (UTC)
Legally speaking even a numerically larger bench of the Delhi High Court can overrule this judgement. However the lower courts in Delhi would apply this judgement directly. The prosecution can then appeal to the Delhi High Court and hope to overturn the judgement by a larger bench.Andy anno (talk) 00:34, 3 July 2009 (UTC)
I just want to point out that the Delhi High Court has given a ruling to amend the Section 377 of the Indian Penal Code. Now unless this decision is challenged in the Supreme Court of India, it is safe to say that homosexuality is legal in all of India and not just Delhi. So, having that grey dot just for Delhi in this map is inaccurate. Please, do not make edits just made on the basis of few media reports. --72.12.198.107 (talk) 00:28, 3 July 2009 (UTC)
I agree. The applicability all over India should be shown as unknown and definitely legal for DelhiAndy anno (talk) 00:34, 3 July 2009 (UTC)

Here we go:

[5]

-- ran (talk) 01:30, 3 July 2009 (UTC)

So according to this article, unless any other High Court strikes this judgement down, it is upheld. However this article gives insufficient information on the Anti Suicide law case where the Delhi High Court held it unconstitutional and the Andhra Pradesh High Court held it constitutional. Was the case sent to the Supreme Court before the contradiction occurred or after? And if it was sent after ,until the Supreme Court verdict came did Andhra Pradesh and Delhi have different laws on suicide? Or is it that on laws enacted by the Central government, the High Courts enjoy equal jurisdiction and the judgements will be sent to the Supreme Court ONLY if there is a contradiction of judgements between the High Courts? I still think that it would be expressly legal in Delhi and ambiguous in the rest of India except Jammu and Kashmir. J&K will need an amendment/judgement on its own penal code which is currently a photo copy of the IPC.Andy anno (talk) 02:55, 3 July 2009 (UTC)
Re suicide: The case went to the Supreme Court after the Bombay HC and AP HC had made their decisions. So until the Supreme Court settled the matter (it eventually also overruled itself), attempting to commit suicide was legal in Maharashtra and Goa, and illegal in Andhra Pradesh.
The Times of India article is misleading, in that it confuses the effect of the Constitution of India's Full faith and credit clause with the question of whether the decision of one High Court binds another or not. -- Arvind (talk) 08:15, 3 July 2009 (UTC)
As per the above saying that the section is repealed because the HC in effect sent notice to re-discuss it is WP:Crystal ball. as it stands today it is only valid in Delhi, the rest is presumption that it would/could be valid elsewhere.Lihaas (talk) 22:01, 21 May 2010 (UTC)

Additional explanation[edit]

Parliament is the final authority, in that no court can overrule a law passed by Parliament. The courts don’t create new laws, or amend existing ones. However, the courts' job is to determine if a law violates a constitution. If so, then the judiciary can rule the law to be unconstitutional and repeal it. However, Parliament is free to amend the constitution as it sees fit Applying that principle to this case, Section 377 is formally read down as of yesterday, and that means it no longer applies anywhere in India. Going forward, lawmakers (ie: Parliament) have four options:

  1. Appeal, and see what the Supreme Court stays. If there is an appeal, however, 377 remains "void" until the Supreme Court states otherwise, if at all.
  2. Do nothing (besides fixing other legislation to take care of any gaps created by 377’s death)
  3. Introduce another law on the same lines as 377. Of course, this will likely be struck down by the courts as being unconstitutional again – so it’s everyone’s waste of time.
  4. Amend the constitution and then reinstate 377 (or something similar). That way, the courts can do nothing, if indeed the amended constitution expressly allows everything-but-the-missionary-position-in-the-dark-under-the-blanket-between-married-adult-heterosexuals-for-procreation-only to be discriminated against.

Parliament creates laws; the Courts determine if these laws pass constitutional muster.

Also, being pedantic, homosexuality by itself was never legal. Anyone could be gay all along and not have to worry about anything. However, acting (sexually) on one’s orientation was the crime. So, technically, anal sex between a man and a woman or threesomes or oral sex, etc were all illegal too.

Sex between two women, however, was never illegal, because it can’t be penetrative. Not without artificial assistance anyway!

Also, Andy anno is right in saying that the rulings of the state High Courts and the Supreme Court are binding across the country. Individual states do not have separate constitutions; there’s one for the whole country. What applies in Delhi applies in Gauhati, and everywhere else too. Even when state legislatures make laws – to be applied only in their own state – the law’s validity is determined by reviewing it against the national constitution. As for Jammu and Kashmir, whilst the state does have its own constitution, all tenets of the Indian constitution apply there equally, unless expressly exempted. Jasepl (talk) 04:03, 3 July 2009 (UTC)

Two points:
  • Courts don't repeal laws in India, they strike them down. In Indian constitutional law, an unconstitutional law is void from day 1, although the courts can choose (as the Delhi HC did here) to give their rulings prospective effect either wholly or in part.
  • A decision of one High Court does not bind other High Courts. The High Court of Bombay could very validly decide tomorrow that S. 307 does not violate the Constitution, and that would be perfectly fine. This is why, as I said above, it is misleading to say that the decision of the Delhi HC applies all over India, even if it's technically correct. This really must be made clear in the article.
  • Re Kashmir: The Indian Penal Code does not apply to Jammu and Kashmir - they have their own penal code (it's called the Ranbir Penal Code, and whilst based on the IPC it's not identical). The corresponding section of the Ranbir Penal Code has not been struck down as yet, and so remains valid. This probably needs a mention in the article.
  • And finally, Just in passing - Option 4 above is unlikely to work: Indian courts have held that the rights conferred by Article 14 and 21 form part of the basic structure of the Constitution, and cannot be taken away even by a constitutional amendment. Given that the right in this case was read into Article 21, there's a decent chance it'll be covered by the basic structure doctrine. --Arvind (talk) 08:25, 3 July 2009 (UTC)
You made four points ;-) Anyway, in response to your comment of ...it is misleading to say that the decision of the Delhi HC applies all over India, even if it's technically correct..., my comment is that until such time as the Bombay (or any other) HC, or the SC, upholds the validity of s. 377, the Delhi HC's judgement is good law throughout the country. What the article now does is reflect the current status quo, which I would not agree is misleading. Good explanations in the rest of your points. Regards, SBC-YPR (talk) 08:34, 3 July 2009 (UTC)
I got carried away once I got started :-) On the issue of other High Courts, I see where you're coming from and I don't think we're very far apart. I'll have a bash at consolidating and rewriting the section on legality this evening, and you can see if you're OK with my wording (discussing concrete wording is always easier than discussing an issue in the abstract). --
I've now done this - it could probably do with some rewording though, so please have a look and feel free to change the wording. The rest of the section desperately needs a trim - much of it is out of date, and much of it could be hived off into an article on the case itself. -- Arvind (talk) 21:36, 4 July 2009 (UTC)
Looks pretty good - thanks for the effort! I'm just going to Indianise it a bit... Spelling and dates mostly and take a shot at a few other bits.Jasepl (talk) 22:04, 4 July 2009 (UTC)
Yup, looks good - great going. I've reworded the succeeding section as well. Nice job with the Kusum Ingots reference - hasn't it been reported? Regards, SBC-YPR (talk) 07:37, 6 July 2009 (UTC)
It was, but I pulled the quote out through JUDlS, which doesn't provide citations. I'll look it up. good rewrite of the following section, by the way. --Arvind (talk) 10:30, 6 July 2009 (UTC)
In regards to the first posting "Individual states do not have separate constitutions; there’s one for the whole country. What applies in Delhi applies in Gauhati, and everywhere else too. " Is that why some provinces have Freedom of Religion Bills and others dont? If one is good for the entire country then you won't need multiple laws.(Lihaas (talk) 21:58, 21 May 2010 (UTC)

References[edit]

India on homosexuality laws maps[edit]

World laws pertaining to homosexual relationships and expression.svg

An anon user posted on File talk:World homosexuality laws.svg#India that the ruling does not apply to Jammu and Kashmir (citing Times of India). The Jammu and Kashmir issue was alluded to above on this talk page but not with a definitive answer. I already uploaded Delhi-only versions a couple of days ago (news reports at time led me to believe it was the case) only to be reverted, so wanted to check before repeating that mistake with Jammu and Kashmir. Currently, the maps are showing all of India legalized. thanks, Wikignome0529 (talk) 07:02, 5 July 2009 (UTC)

The Delhi High Court struck down a section of the Indian Penal Code. This law does not apply to Jammu and Kashmir - J&K has its own penal code (the Ranbir Penal Code) - so obviously the ruling striking that section down also does not apply. If the RPC has a provision criminalising homosexuality, its validity will have to be separately considered. That having been said, I have no idea whether the Ranbir Penal Code even criminalises homosexuality - you'll have to start by figuring that out. -- Arvind (talk) 09:46, 5 July 2009 (UTC)

Irrelevant subsection "Legal Aspect[edit]

I don't understand what purpose the "Legal Aspect" section under "Legal Status" serves. In any case, it only gives one view of many viewpoints by the ASG and none at all of the petitioners. This section needs to be removed. Thoughts anyone?

Bhagwad (talk) 14:35, 8 July 2009 (UTC)

Yes check.svg Done It has been moved to a sub-article. Regards, SBC-YPR (talk) 17:53, 13 July 2009 (UTC)

Apparent Error in "Court Proceedings" Section[edit]

A paragraph at the end of this section reads (boldface and italics added by me):

In its judgment the Supreme court stated
"We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors... Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality."

I'm having trouble reading the link with the full text of the decision, but it seems to me that the italicized section is NOT a statement by the Supreme Court, but is actually a quotation from the 2009 decision by the Higher Court. Could someone please verify this and make the necessary changes? Throbert McGee (talk) 21:21, 29 December 2013 (UTC)