SC refuses to stay HC verdict legalising gay sex

New Delhi, Jul 20 (PTI) The Supreme Court of India Monday
declined to grant interim stay on the pathbreaking judgement
of the Delhi High Court legalising gay sex among consenting
adults, saying there was no threat of any penal consequenses.

The Apex Court said it will wait for the government to
come out with a definite stand on the issue and also allowed
intervenors, who were not a party before the High Court, to
present their case before it.

"We are not for stay as there is no threat of any
consequences. We will hear the government, what is their
stand," a Bench comprising Chief Justice K G Balakrishnan and
Justice P Sathasivam said.

"Why not wait till government takes a definite stand,"
the Bench said, adding that "we would have considered staying
the judgement if there were penal consequences. But here there
are no penal consequences".

The Bench, which accepted the plea of the government
for more time to present its stand, posted the matter for
hearing on September 14.

However, it turned down the opposition from gay right
activists for excluding those who were not a party before the
High Court from arguing against the verdict that section 377
of the Indian Penal Code, prescribing punishment for gay sex
among consenting adult in private with upto life imprisonment,
was violative of fundamental rights under Article 14, 15 and
21.

"It effects the whole country. They have a right to
object. It is a matter of public interest/importance," the
Bench said.

The apex Court refrained from making any observation
relating to the legitimacy of gay marriages when the counsel
opposing the High Court verdict wanted that even if it was not
in favour of granting interim stay on the verdict, at least it
could say that there was no legitimacy to such marriages which
have been reported after the July 2 judgement.

"We will not make any observation on gay marriages,"
the Bench said and also did not give much weightage to the
submission that striking down of section 377 from the statute
will have a far reaching consequences.

"Cases under Section 377 are registered only with
regard to paedophiles. People are being convicted but it has
nothing to do with gay marriages," the Bench said, adding that
"as far as section 377 is concerned, there is no serious
concern for the time being."

At the outset, Attorney General G E Vahanvati said
there cannot be a stay of the High Court verdict which is of
limited nature concerning sex among consenting adults.

"We took a stand in the High Court which has given a
judgement and we find that it is a limited order concerning
the consenting adults," he said, adding that the government
will reconsider its stand as three ministries are involved in
the matter.

As far as concern has been raised about the
legitimacy of the gay marriage, he said that the apex court on
July 9 had made it clear that it has not changed the
definition of marriage.

"Marriage is not between a man and a man or between
a woman and a woman," he said.

Advocate Pravin Agarwal, appearing for astrologer
Suresh Kumar Kaushal, on whose petition the apex court had
issued notice to the Centre, said the case was made out for
grant of interim stay as the verdict has far-reaching adverse
affects.

He said legalising male to male sex among consenting
adults will lead to male prostitution and there will be gay
parlours all around.

However, this submission was opposed by advocate Anand
Grover, appearing for the NGO, Naz foundation, who said the
judgement has nothing to do with prostitution.

He said the High Court has given a limited order and
it will not cause any prejudice to anybody.

Another advocate opposing the High Court judgement
said the verdict would have a bearing on the law of adultry
and incest.

However, the Bench was not impressed with the
submission and said, "Don't mix up the things as adultry and
incest have not been permitted by the judgement".

"The judgement is only about the consensual sex
between male to male and female to female," the Bench said.

Senior advocate Anil Divan, appearing for the gay
right activists, said, "We are supporting the judgement".

He said the judgement is in consonance with the stand
of United Nations and WHO.

The senior advocate said countries like Fiji, South
Africa besides many European nations have legalised gay sex
among consenting adults and even the Ministry of Health here
supported the stand in the High Court.

Divan said, "Even in our civilization there is
Khajuraho and Kamasutra and there should not be any stay of
the High Court verdict."

However, the Bench had a different take on the
submission made by Divan. "There is a lot of difference
between the European countries and our civilization," it said.

The astrologer's counsel took the opportunity to
submit that "what is moral in America and other countries
cannot be moral in India.

"We are the nation of Mahatma Gandhi who has called
gay sex as unnatural," another advocate said.

The apex court had earlier issued notice to the Centre
seeking its response on the petition filed by astrologer
Kaushal challenging the High Court judgement.

Notices were also issued to Naz Foundation, the NGO,
and other respondents who were parties before the High Court.

Kaushal has sought quashing of the July two High Court
judgement legalising gay sex between consenting adults in
private, which was earlier a criminal offence punishable with
upto life imprisonment. PTI RKS
PMR
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