Centre leaves it to the wisdom of SC to decide validity of Section 377

The Centre, on Wednesday, told the Supreme Court that it would leave it to the wisdom of the judges to decide to decide if Section 377 that criminalises consensual gay sex was constitutionally valid.

A five-judge constitution bench headed by Chief Justice Dipak Misra, which is hearing a batch of petitions challenging its 2013 verdict that had re-criminalised consensual sex between two consenting adults of the same gender, was told by the Centre that it has no objection with the court dealing with the validity of this penal provision.

"We leave to the wisdom of the Court to deal with the validity of Section 377 so far as it relates to consensual sexual acts between two adults,” said the additional Solicitor General Tushar Mehta, representing the Centre, on the second day of the hearing.

The bench, which also comprised Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, said it has already made it clear on Tuesday that only the constitutional validity of Section 377 will be dealt with by it.

The law officer 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.

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.

The apex court had on Tuesday commenced the crucial hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same gender.

The apex court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgement that had held as unconstitutional Section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence.