Naz Foundation Update: SC begins hearing
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Naz Foundation Update: SC begins hearing

Bar & Bench

The Supreme Court of India last week began hearings on the appeals against the 2009 decision of the Delhi High Court in Naz Foundation vs. Government of NCT of Delhi de-criminalizing Section 377 of the Indian Penal Code (IPC).

The Supreme Court of India last week began hearings on the appeals against the 2009 decision of the Delhi High Court in Naz Foundation vs. Government of NCT of Delhi de-criminalizing Section 377 of the Indian Penal Code (IPC).

The Delhi High Court had struck down the constitutional vires of Section 377, stating that “…section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Article 21, 14 and 15 of the Constitution”. A group of organizations, including those against gay rights, had challenged this judgment in the Supreme Court.

The batch of petitions under the lead case Suresh Kumar Koushal & Ors vs. Naz Foundation & Ors [SLP(C) 15436/2009] came up for hearing on February 13, 2012 before Justices G S Singhvi and S J Mukhopadhyaya. The respondents in these petitions are the Naz Foundation and Voices against 377, the original parties in the Delhi High Court verdict. Intervening parties include a group of parents of Lesbian Gay Bisexual Transexual (LGBT) kids, a group of senior mental health professionals, a group of senior academicians and Shyam Benegal.

February 13, 2012

The matter came up for arguments after lunch. The Counsel for the Petitioner voiced his concern as to whether the 2009 High Court decision was also binding on other states and union territories, an argument, which was not given much attention by the Supreme Court. “Don’t go into trivialities, come to the substance” the bench stated when Counsel Praveen Agrawal persisted with his argument.

The bench adjourned the matter for the next day due to shortage of time.

February 14, 2012

The matter was listed but did could not come up for hearing

February 15, 2012

The hearing began at 3 p.m. With Senior Advocate Amrendra Saran appearing for the Delhi Commission for Protection of Child Rights and listing various arguments against the decision of the Delhi High Court.

With reference to Section 377 of the Indian Penal Code (IPC), Saran stated that “As per the section, homosexuality is an offence as it is against the order of nature” to which the Court interrupted by asking to explain how such acts are against the order of nature and  “What is unnatural?”

While Saran attempted to define the term “unnatural” as one having a constant definition as per the IPC, the Court intervened by saying “…the meaning is never constant, we have travelled sixty years”.

The Court also questioned the Counsel whether “surrogate mothers and test tube babies are also against the order of nature?”

The Court further asked the counsel to find experts to speak about the “order of nature” of carnal intercourse and to provide judgments from different courts defining the term “carnal”.

The Bench stated that they would continue hearing the matter tomorrow.

February 16, 2012

The hearing began after lunch with Senior Counsel Saran reading out six different judgments right from the year 1925 to a 1992 Madras High Court judgment differentiating sections 375 & 377 of the IPC. (S.375 deals with the offence of rape and uses the term “sexual Intercourse” while S.377 uses the term “carnal intercourse”).

The Court stated that none of the judgments defined which act is “against the order of nature”. “We are not in that time, society is changing. Twenty or thirty years ago actions which were treated immoral are now accepted and have become a part of the society” said the Court.

The Court, giving examples of live – in relationship, surrogacy and single parents stated that these too were “against the order of nature thirty years ago”.

The Court referred to the sculptures of Khajuraho to emphasize that gay sex was not an offence before the British enacted the IPC in 1860.

“Social issues cannot be decided on the basis of sculptures”, Saran replied.

However, the Bench observed that it is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse.

It’s interesting to note that the Government of NCT of Delhi and the Government of India have chosen not to file an appeal against the Delhi High Court judgment as yet.

The active involvement of the bench kept the atmosphere light yet interesting. The next hearing shall be held on February 22, 2012.

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