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Decriminalising Gay Sex: Centre 'Leaves It to Wisdom of Supreme Court'

Decriminalising Gay Sex: Centre 'Leaves It to Wisdom of Supreme Court'

Wednesday, July 11, 2018 IST

The Supreme Court in 2013 had set aside the Delhi High Court's 2009 verdict de-criminalising consensual gay sex among adults after which review petition was filed and was later dismissed.

New Delhi: The Centre on Wednesday refused to take a stand on the validity of Section 377 and left the decision to the “wisdom of the Supreme Court.”

The government also said it would not be contesting the provision. This is a stark departure from the earlier government stand when it had stated that it supports criminalisation of the same sex relations.

"So far as the constitutionality of 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 the court," reads the affidavit filed by the court.

However the government has sought clarification on bestiality or offence of carnal intercourse with animals.

The government has also stated that it will file a detailed reply if the court decides to venture into civil rights and liabilities.

“Please do not say anything which can be construed as affecting civil rights, inheritance, marriage rights etc,” ASG Mehta submitted before the SC.

Section 377 of the IPC states: “Whoever voluntarily has carnal inter¬course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature and the ambit of this law extends to any sexual union involving penile insertion.

The Centre has also requested that the court should keep relationships such as incest and bestiality aloof from deliberations. “Don’t expand the scope of these petitions,” said ASG Mehta.

This development comes a day after Attorney General KK Venugopal hinted that the government supported Section 377 and was opposed to scrapping it down.

“I had appeared for the curative (petition). I'm told the government's stand is different. Therefore, I'm not appearing in that case at all. I can't appear because the government of India has a different stand," he told reporters.

On Tuesday, a five-judge constitution bench headed by CJI Dipak Misra started revisiting its own 2012 verdict that criminalised homosexuality.

Entire LGBTQ community is now hopeful that this "archaic" and “colonial” legal provision will be done away with. The Delhi HC had ruled that Section 377 which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, was unconstitutional.

AG Venugopal is not the first to not defend Section 377. Two former AGs - Mukul Rohatgi and Goolam Vahanvati - had also taken the same stand. In 2012, Vahanvati had famously said his “conscience would not permit him to do so”. He then independently assisted the court as an amicus.

This development comes a day after Attorney General KK Venugopal hinted that the government supported Section 377 and was opposed to scrapping it down.

On Tuesday, a five-judge constitution bench headed by CJI Dipak Misra started revisiting its own 2012 verdict that criminalised homosexuality.