Putting the onus on the Supreme Court to decide the matter of the constitutionality of Section377 of the IPC, the Centre on Wednesday said that it will not contest the petitions challenging the law which criminalises consensual gay sex between two adults.
In an affidavit submitted in the apex court, Additional Solicitor General Tushar Mehta said that the Centre has decided to leave the issue to the wisdom of the Court.
"We leave the validity of Section 377, so far as it relates to consensual acts between two adults, to the wisdom of Court," Centre told the top court.
Mehta, however, requested the apex court to not decide on the corollary rights of the LGBTQ community, such as those related to their marriage, property and inheritance rights saying it will have many repercussions.
A five-judge Constitution bench headed by Chief Justice Dipak Misra on Wednesday began hearing a clutch of petitions challenging a 158-year-old colonial-era law that criminalises gay sex. The bench comprises Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra besides the CJI.
During the hearing today, the bench said it will restrict itself to whether Sec 377 is unconstitutional with regard to consensual sex between two adults.
Section 377 of the Indian Penal Code (IPC) 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 which may extend to 10 years, and shall also be liable to pay a fine.
The Delhi High Court, on July 2, 2009, had legalised homosexual acts among consenting adults, holding that the 149-year-old law making it a criminal offence was violative of the fundamental rights.
The apex court had in 2013 had restored the criminality of the sexual relationship between persons of the same sex, after the Delhi High Court' had decriminalised it in 2009.
