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Section 377 in Supreme Court: Centre takes no stand on consensual gay sex

The Centre's response comes on day 2 of the Supreme Court's hearing on a bunch of petitions challenging Section 377 of the Indian Penal Code that criminalises homosexuality.

The Home Ministry has also filed an affidavit elucidating the government’s stand on Section 377 (Express Photograph by Neeraj Priyadarshi/Representational)

The Centre Wednesday said it would not take a stand on the validity of Section 377 of the Indian Penal Code that criminalises consensual sex between two adults of same sex.  Additional Solicitor General (ASG) Tushar Mehta, appearing for the Centre, told the apex court, “We leave it to the wisdom of the court.” The Home Ministry has filed an affidavit elucidating the government’s stand on the case.

The Centre’s response comes on day two of the Supreme Court’s hearing on a bunch of petitions challenging IPC’s Section 377. A five-judge Bench headed by CJI Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra are listening to the pleas.

“I state and submit that so far as the constitutional validity Section 377 to the extent it applies to “consensual acts of adults in private” is concerned, the Union of India would leave the said question to the wisdom of this Hon’ble Court,” the Centre’s affidavit read. CJI Dipak Misra responded, “It means you are not contesting.”

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ASG Mehta said that if the right to chose sexual partner is declared a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing to marriages. “We are not considering all these issues. One cannot judge these issues in vacuum,” the bench said.

Follow LIVE updates on SC hearing on Section 377 validity

The Centre also prayed that if apex court declares Section 377 viz. “consensual acts of adults in private”, unconstitutional, “no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into.” In response, the court reiterated that it would deal only with the criminalisation of Section 377 and not venture into the issue of marriage relating to the LGBTQ (lesbian, gay, bisexual, transgender and queer) community or inheritance in live-in relationships. “Those are individual issues we cannot pre-judge now,” he had said on Tuesday.

Festive offer

During Tuesday’s daylong hearing the petitioners had argued that the criminalisation of gay sex was a product of Victorian-era morality and deserved to be struck down as “unconstitutional”. The Centre had earlier sought four weeks time to file its response to the petitions, but the court refused to defer the hearing.

Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal inter course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

First uploaded on: 11-07-2018 at 13:15 IST
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