Sec 377: Centre leaves decision to SC, cautions against marriage rights

Section 377 Banner Representational image | AFP

Additional Solicitor General Tushar Mehta on Wednesday told the Supreme Court bench examining the constitutional validity of Section 377 of the Indian Penal Code—which criminalises gay sex—that the Central government was not going to take a stand on the issue.

Mehta said the Central government was leaving the decision on Section 377 to the “wisdom of the Supreme Court”. However, Mehta requested the Supreme Court not to go beyond the issue of 'criminalisation' of gay sex. He told the five-member bench, “"Please do not say anything that can be construed as affecting civil rights, inheritance and marriage rights.”

Mehta said the Central government would have to file a detailed reply if the Supreme Court went into issues such as civil rights of gay couples. The Centre's statement means further challenges from gay rights activists on issues such as marriage are inevitable, even if a 'positive' verdict is delivered on Section 377.

On Tuesday,the Supreme Court bench itself said it won't expand the scope of the hearings on Section 377 to include rights to marriage or adoption and would only stick to the issue of the constitutional validity of the section.

The five-member bench—led by Chief Justice of India Dipak Misra and comprising Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra—began hearing petitions on striking down Section 377 on Tuesday. The Supreme Court on Monday had rejected a submission from the Centre that sought postponement of the hearings on Section 377 on the grounds that it needed four weeks' time to respond to the petitions.

Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse 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 that may extend to 10 years, and shall also be liable to pay a fine.

The Supreme Court had in 2013 restored the criminality of the sexual relationships between persons of the same sex, after the Delhi High Court had decriminalised it in 2009.

When the Supreme Court had set aside the Delhi High Court judgement decriminalising sex between consenting adults of same sex by holding Section 377 of IPC as "illegal", review petitions were filed. On their dismissal, curative petitions were filed by the affected parties for re-examination of the original verdict.