Court Proceedings of the pending appeal in relation to Section 377.

[Guest guest]

Dear FORUM,

Re: Suresh Kumar Kaushal v. Naz Foundation SLP© No. 15436/2009

On 20th July, 2009 the Supreme Court heard Suresh Kumar Koushal’s Petition

against the Delhi High Court judgment which decriminalized consensual sex

between adults under Section 377. This matter was mentioned in the Chief

Justice’s court on the 9th of July, 2009 and the court had issued notices to

parties including the Union of India and Naz Foundation.

Today the bench comprising Chief Justice K.G. Balakrishnan and Justice

Sathasivam heard the matter for admission and grant of stay. Mr. Goolam

Vahanvati, Advocate General of India, appearing for the Government stated that

the government had taken a particular stand in the High Court and in light of

the present situation it is yet to decide on the matter. However the government

did not support the granting of interim stay and sought further time.

The counsel for Suresh Kumar Koushal submitted that the decision of the Delhi

High Court would lead to a rise in “gay parlours†and “gay

prostitutionâ€. He also mentioned that instances of same sex marriages have

also been reported.

Anand Grover appearing for Naz Foundation said that the Home Ministry had itself

admitted that Section 377 of the Indian Penal Code was rarely invoked against

adult consensual sex, therefore there would be no prejudice caused if the

decision remains operative. He further argued that the Appellants had failed to

plead that they were prejudicially affected and therefore had no Locus Standi.

The Chief Justice however, said that in a public interest matter such as this,

third parties may be heard.

Anand Grover further stated that marriage and prostitution were unrelated to the

judgment and had no bearing on the matter. He further argued that as far as male

prostitution is concerned the Immoral Traffic (Prevention) Act is gender neutral

and would cover this.

The Attorney General interjected by stating that the judgment does not effect or

alter marriage laws, which continue to refer to terms such as “bride†and

“groom†and that marriage is termed to be only between a man and a woman.

Counsel for B.P. Singhal, advocate H.P. Sharma arguing against decriminalization

said that if adult consensual sex remains decriminalized and if the analogy of

consent was to be followed then this would have an effect on various other

offences being decriminalized, such as gambling, adultery and incest.

He further stated that the House of Lords in the decision of R v. Brown stated

that consensual homosexuality remained a crime, and was a dangerous practice. He

further argued that as per NACO’s affidavit filed in the High Court they had

mentioned that only 36% of the men who have sex with men used condoms and 64%

don’t; and asked if some can then why can’t others?

Anil Divan, Senior Advocate, appearing for Voices against 377 said that the

Delhi High Court’s decision is in line with UN resolutions and WHO policy. He

also pointed out that the Health Ministry had filed an affidavit in support of

decriminalization of adult consensual sex.

He further stated that decriminalization was being done all over the world in

countries such as Fiji, South Africa, Hong Kong, Canada as well as the whole of

Europe.

The Bench remarked saying that Indian culture is different from European

civilization therefore the two cannot be compared. Senior Advocate Anil Divan

responded saying that our culture also included Khajurao and Kamasutra.

Counsel for BP Singhal then referred to Mahatma Gandhi's criticism of same sex

behaviour. As editor of the journal Young India, Mahatma Gandhi wrote in 1929

that homosexual activity as an 'unnatural vice' in boys' schools.

Counsel for Suresh Kumar Koushal argued that Section 377 of the Indian Penal

Code had been in place for more than 150 years and that “the world will not

turn upside down†if the judgment was stayed until the government formulated

its position. He argued that there had been no conviction on adult consensual

sex under S.377 and that the law was being used only against pedophiles, and

therefore, a stay on Delhi High Court judgment would not make any difference. He

further pleaded the court to issue an interim stay on the registration of all

gay marriages.

The bench refused to make such clarifications saying that same sex marriages are

prohibited under Personal Laws, and the judgment did not legalize same sex

marriages. Subsequently the Petitioner's counsel pressed that since 70 per cent

of population lives in villages, and people mostly don't understand the Delhi

High Court order, therefore people will still attempt to get married to other

men.

The Bench declined to grant an interim stay for it found that no adverse

consequences would follow. The matter will now be heard in 8 weeks time i.e.

14th of September, 2009. According to the listing four Special Leave Petitions

have been filed including Suresh Kumar Koushal’s petition and the petitions

have been filed by:-

1. S.K. Tijarawala, spokesperson of Baba Ramdev.

2. Apostolic Church though this is lying in defect.

3. B.P. Singhal which has been filed today and not been served on the other

parties to the proceedings.

Posted by

Arvind Gopal

Legal Officer,

Lawyers Collective HIV/AIDS Unit,

New Delhi.

E-MAIL: <gopal.arvind@...>