We expected categorical position from govt, says SC

In an affidavit in early July, the Ministry of Home Affairs left it “to the wisdom of this Court”.

The Supreme Court on Thursday found fault with the Centre for its reluctance to take a stand on the constitutionality of Section 377 and leaving the issue to its “wisdom”, saying it expected a “categorical statement of position” from the government.

In an affidavit in early July, the Ministry of Home Affairs (MHA) left it “to the wisdom of this Court”.

Justice D Y Chandrachud, in his judgement, said it was implicit that the government has “no view of its own on the subject and rests content to abide by the decision of this court”.

“All that the stand of the government indicates is that it is to the ‘wisdom’ of this Court that the matter is left. In reflecting upon this appeal to our wisdom, it is just as well that we as judges remind ourselves of a truth which can unwittingly be forgotten: flattery is a graveyard for the gullible,” he said.

Insisting that the Centre’s ambivalence does not obviate the necessity for a judgment, the court said, “We would have appreciated a categorical statement of position by the government, setting out its views on the validity of Section 377.”

Chandrachud said the challenge to the constitutional validity of Section 377 “must squarely be addressed” and it was “plainly the duty” of the Court. “Constitutional issues are not decided on the concession. The statement of the Union government does not concede to the contention of the petitioners that the statutory provision is invalid. Even if a concession were to be made, that would not conclude the matter for this Court,” he said.

In the affidavit, the MHA neither supported nor opposed the decriminalisation of “consensual acts of adults in private”.

However, it had 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.

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We expected categorical position from govt, says SC

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