Apex court refuses to stay gay ruling

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By OUR LEGAL CORRESPONDENT in Delhi
  • Published 9.07.09
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New Delhi, July 9: The Supreme Court today refused to stay the Delhi High Court judgment that says consensual adult gay sex is not a crime, and fixed the hearing of an appeal against it for July 20.

The court issued notices to the Centre, Delhi government, Delhi police and the Naz Foundation, an NGO that had filed the high court case in favour of gay rights.

The high court had excluded adult consensual gay sex, done in private, from the scope of Section 377 of the Indian Penal Code, which is also invoked against paedophilia and rape of male children.

When the lawyer for the appellant, astrologer Suresh Kumar Koushal, sought a stay, the bench said “the issue has been in hibernation since the last 30 years” and should be allowed to come up for hearing.

The two-judge bench also pointed out that the high court judgment dealt with a part of Section 377 that had rarely been invoked.

“Only a handful of cases have been filed under Section 377, except cases of paedophilia…. For gay sex, to my knowledge, no one has been prosecuted,” Chief Justice K.G. Balakrishnan said.

Koushal’s lawyer Praveen Agrawal claimed the high court verdict had led to a flurry of “gay marriages” —which are not legal in India.

“Hundreds of such marriages are taking place. What will be (the legal status) of these marriages, what about the issues of inheritance and divorce…” Agrawal wondered.

The court replied that the high court judgment had not spoken of gay marriages. “We have not changed the definition of marriage,” it said.

By July 20, all the parties must spell out their stand. In the high court, the Centre had spoken in two voices, the home ministry arguing for Section 377 to be retained in its current form and the health ministry backing Naz’s position that the law drove gays underground and out of the reach of HIV/AIDS programmes.

Koushal’s petition said that since the incidence of HIV/AIDS among gays was eight per cent compared with one per cent among heterosexual couples, legalising adult gay sex would increase the disease’s spread.

The petition claimed homosexuality was not a “natural act” since even animals did not engage in it, a line several religious leaders also took at a news conference hours later.

Among those present were Jamaat-e-Islami Hind president Maulana Syed Jalaluddin Umari, Jain spiritual leader Acharya Lokesh Muniji, Daljit Singh of the Delhi Sikh Gurdwara Prabandhak Committee and Father Dominic Emmanuel, spokesperson for the Delhi Catholic Archdiocese.

Umari said homosexuality was punishable under Islam. Emmanuel spoke of compassion for those who showed “unnatural”, “deviant” behaviour. Emmanuel, however, feared that the high court judgment would lead to more same-sex marriages. “It will ruin the concept of family that is the cornerstone of our society.”

The sole Hindu representative expected at the meeting, Shankaracharya Onkaranandji, did not turn up.