The statutory commission for protection of child rights has petitioned that the dilution of section 377 of IPC has legalised one more way of large scale sexual exploitation of children.
A bench comprising Justice B N Agrawal, Justice G S Singhvi and Justice M K Sharma, after hearing the plea, issued notices to the Centre, NGO Naz Foundation and others on whose petition the high court had held that criminalisation of gay sex among the consenting adults was violative of fundamental rights guaranteed under the Constitution.
The bench also tagged the petition of DCPCR with other similar appeals on which the notices have already been issued and posted the matter for hearing on October 1.
Senior advocate Amarender Sharan, appearing for DCPCR, said dilution of the penal provision will have pernicious effects on children.
The bench, however, wanted to know whether DCPCR had intervened in the matter before the high court. At this, Mr Sharan replied in negative and said it was doing so now as DCPCR, after going through the judgement, has filed the appeal as it is a statutory commission for the protection of children.
The petitioner commission submitted that plethora of scientific research highlighting the problems of homosexual behaviour and their serious impact on child welfare was not brought before the high court which held that the homosexual behaviour is normal.
“The high court did not have the benefit of scientific studies and on a very scanty, selective material has passed the judgement holding that the homosexual behaviour is a normal behaviour”, the petition said.
The commission contended that gay sex would adversely affect the physiological and mental development of a child and the high court has failed to take into account the problems encountered by homosexuals and their outcome on society at large including children.
The commission further said that the age of 18 years to define adulthood for consensual homosexual act in private is unreasonable as the age is characterised by changes and turmoil where the inquisitiveness and peer group pressure play a major role in the personality development of a child.
The apex court had earlier issued a notice to the Centre on a petition filed by a Christian body, a disciple of yoga guru Ramdev and astrologer Suresh Kumar Kaushal seeking a stay on the high court order legalising gay sex on the ground that it will have a catastrophic effect on the society’s moral fabric.
All the petitioners have sought setting aside of the high court verdict legalising gay sex between consenting adults in private, which was earlier a criminal offence punishable with upto life imprisonment.
Delhi child rights panel moves apex court on gay sex
Delhi's child-rights panel on Tuesday moved the Supreme Court opposing a high court ruling decriminalising homosexuality, saying it would permit sex between men as young as 18.The Delhi Commission for Protection of Child Rights (DCPCR) in its lawsuit pointed out that the laws of the land prevent men below the age of 21 from marrying women and even countries like the United Kingdom permit homosexuality between adults above the age of 21.
Admitting the lawsuit, a bench of Justice BN Agrawal and Justice GS Singhvi issued notices to the union government and the civil society Naz Foundation, seeking their stand on the Delhi High Court verdict.
The high court had in early July decriminalised gay sex between two consenting adults, acting on a lawsuit by the NGO Naz Foundation. The union government has so far not challenged the verdict.
Appearing for DCPCR, former additional solicitor general Amrendra Saran sought immediate suspension of the high court ruling, but the court slated the matter for hearing on Oct 1.
In its lawsuit, the DCPCR said it was "constrained to move the apex court challenging the high court ruling as the high court has failed to take into account various aspects related to homosexuality, which actually adversely affect the physiological state of a child".
The DCPCR lawsuit pointed out that for the purpose of consensual gay sex, the Delhi High court ruling has considered a person of age 18 years or above as adult.
"But it is pertinent to point out at this stage that the Sexual Offence Act, 1967 of the United Kingdom partially decriminalizes homosexual acts in private between two males, both of whom must have attained the age 21 years," said the lawsuit.
"So even in the society like England, the minimum age for homosexuality in private is 21 years," said the lawsuit, adding the Delhi High Court's act of allowing homosexuality at the age of 18 years is "unjustified and without reason".
"In other words, the maturity and inability to comprehend the consequences of an act is not well developed in an individual of 18 years," said the lawsuit.
"Ironically, the high court ruling allows 18 year old men to indulge in homosexuality, while even the law of the land bars men's marriage below the age of 21 and girl's marriage below the age of 18.
"Even psychologically and physically, the age of 18 years is the age of changes and turmoil where the inquisitiveness and peer group pressure play a major role in the personality development of the child," said the DCPCR lawsuit.
The lawsuit said the high court appeared to be influenced by the fact that homosexuality has been legalized in some Western countries like the Netherlands, Canada, Belgium, South Africa, Norway and South Africa, which, however, are culturally very different from India.
The lawsuit contended that India and China, which are home to over two-fifths of the world's population, have entirely different cultures.
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