Section 377: Centre leaves decision to SC's wisdom

The government on Wednesday informed the Supreme Court that it will leave it to the “wisdom” of judges to decide on the constitutional validity of Section 377 that criminalises consensual gay sex.

In its affidavit filed in the apex court, the Ministry of Home Affairs (MHA) neither supported nor opposed the decriminalisation of “consensual acts of adults in private” falling under Section 377 of the Indian Penal Code (IPC). This is read among a section of activists as government’s indication that it is not opposed to such a move if the court decides so.

The MHA also said the court should not deal with issues like gay marriages, property and inheritance rights, during the hearing of the issue by the Constitution Bench.

The only question before the Constitution Bench hearing a bunch of petitions is the validity of criminalising “consensual acts of adults in private” falling under Section 377, it said.

Emphasising that the order of reference to the Constitution Bench mentions only the issue of deciding the constitutional validity of the penal provision, it said, “the Union of India would leave the said question to the wisdom of this court.”

In case the court declares Section 377 to be unconstitutional, the affidavit said, “no other issue/issues and/or rights are referred for consideration and adjudication and, therefore, may not be gone into.”

On Tuesday, some of the petitioners had said that the issues of gay marriages, property and inheritance rights should be dealt with in the present hearing.

“If this court is pleased to decide to examine any other question other than the constitutional validity of Section 377, or to construe any other right in favour of or in respect of LGBTQ, the Union of India would like to file its detailed affidavit in reply as the consideration of other issues would have far-reaching and wide ramifications under various other laws and also have consequences which are neither contemplated in the reference nor required to be answered by this bench,” it said.

It said if the court permits to raise issues beyond the scope of the reference, the same would require a detailed counter affidavit showing legitimate state interest on various other issues.

“Such an exercise could obviously not undertaken without wider consultations in the government... allowing any other issue (other than the constitutional validity of Section 377) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter affidavit may not be in the interest of justice and would be violative of the principles of natural justice,” it said.