[Reader-list] Supreme Court hearing 20.07.2009 on Sec 377

[Lawrence Liang]

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> Dear All,Please find below a brief synopsis of today's proceedings  
> in the Supreme Court. We have also come to know that the Apostolic  
> Churches Alliance had mentioned the matter today, without notice to  
> us. We were told that the Chief Justice refused to grant early  
> hearing of this matter, or that it be tagged along with Suresh  
> Koushal's matter today, and that it would come up in its turn. Will  
> get the full orders as soon as it's released. I think Voices'  
> lobbying with the Government worked to give us a two month breather.  
> So congratulations!
> Love
>
> Mayur
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> 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.
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> 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.
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> 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.
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> 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.
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> 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.
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> Counsel for BP Singhal stated that the UK House of Lords in the  
> decision of 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.
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> 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.
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> 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.
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> 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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