Supreme Court declines immediate stay on Delhi High Court’s Naz Foundation judgment

The hearing on the SLP against Delhi HC’s July 2 judgment on Naz Foundation v. UOI (Suresh Kumar Kaushal v. Naz Foundation) began at 12.35 p.m. and ended at 12.50 p.m. at Court No.1 before CJI and Justice Sathasivam. I am posting a quick summary of the proceedings, subject to corrections. The Court declined to accept petitioner’s plea for an immediate stay on the HC’s judgment, without hearing the UOI. The A-G said the Government has a definite stand, but wanted more time to formulate it, since three ministers were involved. He did not support the plea for an immediate stay. The Court then granted the Government eight more weeks to file its reply to the notice.

At the outset, the Petitioner’s counsel drew to the Court’s attention, the A-G’s view that S.377 was not invoked against consenting adults in private even once. 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. Another counsel also brought the question of locus, saying petitioner in this case was not a party before the High Court, but the CJI immediately dismissed the objection, saying it is a PIL matter.

The petitioner’s counsel then referred to the R v. Brown case in support of his plea for an immediate stay on the judgment. At this point, 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 petitioners’ counsel 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 counsel then suggested that things would not turn upside down if the SC stayed the HC judgment, and let the Government take its own time to take a definite stand. He also pointed out that AIDS spreads eight times faster through same sex conduct than through hetero sex behaviour. He argued that there had been no conviction under S.377, and therefore, a stay on HC judgment would not make any difference.

When the Petitioner’s counsel referred to the possibility of a rise in gay marriages following the judgment, 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, but a reason to educate the people about the HC’s judgment.

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