The hearing on the SLP against Delhi HC's judgment (Suresh Kumar Kaushal v.
Naz Foundation SLP(C) No. 15436/2009) was heard by a bench comprising of the Chief Justice and Justice Sathasivam.
Attorney General Goolam Vahanvati started off by saying that the Government took a particular stand before the High Court, but in light of the judgment of the Delhi High Court, the Government was reevaluating its stand, and that it needed more time to said the Government has a definite stand. He said that section 377 remains on the statute books and only a small portion of it has been taken out of the ambit of the law. (In my reading indicating that child abuse and non-consensual sex remained crimes.) He said that the section has been declared unconstitutional only insofar as it applies to consensual sexual acts between adults, and that the Government requires more time to arrive at a conclusion at this regard. He then particularly stated that the Government does not support the plea of interim stay of the judgment.
The Petitioner's counsel drew attention to the submission that the provision was not being utilised against consenting adults. But the impact of the Delhi High Court's judgment, he suggested, is such that consenting adult sex between two males is legalised, whereas commercial sex between male and female continues to be illegal. The Counsel for the petitioner further argued that as a result gay marriages were taking place throughout the country.
The Attorney General then interjected by stating that the judgment does do nothing to change or alter marriage laws and that marriage laws still continue to use bride and groom meaning that they are only between a man and a woman.
Anand Grover then questioned the locus of the petitioner to bring this petition. He said that he was neither a party at the High Court, nor has he made any pleadings as to the nature of his right that is affected by the ruling of the Delhi High Court. The Chief Justice however, said in a public interest matter, there is no question of there being no locus.
Counel for the Petitioner then interjected that homosexuals are 8 times more likely to have, and therefore spread HIV/AIDS to the general population. Anand Grover then interjected that it is because of section 377 that homosexuals are more prone to HIV/AIDS. Anil Divan, Counsel for Voices Against 377 then stated that NACO had reached a similar conclusion.
Counsel for BP Singhal stated that the UK House of Lords in the decision of
*R v. Brown* <http://en.wikipedia.org/wiki/R_v_Brown> stated that consensual homosexuality remained a crime, and was a dangerous practice, and that consent does not necesarily mean that no crime was committed. He stated that this judgment would mean that consensual adultery, consensual gambling would all be allowed. Anil Divan, on behalf of the NGO, Voices, argued that the HC judgment is in line with the UN Resolutions, and WHO guidelines.
Secondly, he said many countries including Fiji, South Africa, Canada, whole of Europe, South Africa ,Hong Kong have decriminalised the same sex conduct.
CJI at this point intervened to say that our civilization is different from European civilization. Anil Divan replied saying that our culture also includes Khajuraho, and Kamasutra.
The Counsel for BP Singhal then referred to Mahatma Gandhi's criticism of gay sex behaviour. As editor of the journal Young India, Mahatma Gandhi wrote in 1929 about the 'unnatural vice' in boys' school.
The Petitioner's then argued that the law has been in place for more than
150 years and that the world would not turn upside down if the judgment was stayed while the government formulated its stand. He argued that there had been no conviction under S.377 and that the law was being used only against pedophiles, and therefore, a stay on HC judgment would not make any difference.
He then argued that if the Chief justice was not granting a stay then, that the Chief Justice should also issue a stay on the registration of all gay marriages. The CJI said such marriages are prohibited under the Personal Laws, and the judgment did not legalise gay marriages. When the Petitioner's counsel argued that 70 per cent of population lives in villages, and people mostly don't understand that the HC order legalised sexual conduct, and not marriages between two consenting same sex adults, the CJI said that cannot be a ground for the stay.
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