By Thaddeus M. Baklinski

NEW DELHI, July 21, 2009 ( - The Supreme Court on Monday refused to pass an interim order to stay the Delhi High Court judgment declaring Section 377 of the Indian Penal Code unconstitutional and decriminalizing unnatural sex between consenting adults.

Earlier this month India's Supreme Court agreed to consider a petition seeking to repeal the recent High Court ruling that effectively decriminalized homosexual sex.

Counsel for the petitioners, Suresh Kumar Koshal, an astrologer, and Mukesh Kumar Koshal, had insisted on a stay, but the Supreme Court Bench, comprised of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam said: "We are not for stay as there is no threat of any penal consequences. We feel, for the time being, stay is not required." The Supreme Court said it will wait for the government to come out with a definite stand on the issue.

The Court also turned down the plea of homosexualist activists seeking exclusion of those who were not present before the High Court from arguing against its verdict at the Supreme Court. "It affects the whole country. They have a right to object. It is a matter of public interest/importance," the Court observed.

The counsel representing the petitioners had also said that even if the court was not in favor of granting interim stay on the High Court order, it could at least make observations that there was no legitimacy to so-called same-sex "marriages" that took place after the High Court ruling.

However, the Justices responded, saying, "We will not make any observation on gay marriages," adding they did not give much weight to the submission that striking down of Section 377 from the statutes will have far-reaching consequences.

"Why not wait till government takes a definite stand and then we will decide," the Justices said, adding that "we would have considered staying the judgement if there were penal consequences. But here there are no penal consequences. We will hear the government, what is their stand."

Attorney-General G.E. Vahanvati submitted that since three ministries were involved it would take some time to formulate the government's response to the Supreme Court. Vahanvati said the government had presented its position before the High Court but it would have to reconsider it in light of the Supreme Court's agreement to consider Koshal's petition. However, he opposed staying the High Court judgment because the ruling "was of a limited nature concerning gay sex between consenting adults."

The Supreme Court posted the matter for further hearing on September 14.

See previous LSN coverage:

India Supreme Court Accepts Challenge to Legalization of Homosexual Sex

Indian High Court Decriminalizes Homosexual Acts