Naz Foundation moves SC seeking review of order on gay sex

The Naz foundation on Tuesday approached the Supreme Court seeking review of its earlier order criminalizing homosexuality. Their move came close on the heels of a similar appeal filed by the union government before the court a few days ago.

Earlier this month, a bench-headed by Justice (now retired) GS Singhvi had set aside the Delhi High Court judgment decriminalizing gay sex. According to Section 377 of the Indian Penal Code, carnal or unnatural sex invites a punishment up to life imprisonment and fine.

The law was set during the British period in 1861, and after Independence, successive governments have failed to change its provision. The Delhi High Court had in 2009 ruled that it was not criminal to have sex between two consenting adults in private. 

Naz foundation, which is representing the gay community, has also sought an interim stay on the order passed by Justices (now retd) Singhvi and SJ Mukhopadhaya. Their judgment had invited sharp criticism from all quarters of the society. According to activists, the SC took the excuse of not interfering with the function of parliament, which makes or amends such laws.

“Since 1950 the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision,” the Supreme Court said in its judgment.

“Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law,” the judgment added.