New Delhi: The Union government on Wednesday decided to leave it to the “wisdom of the Supreme Court” on declaring IPC Section 377 criminalising consensual gay acts of two adults as unconstitutional or not.
Additional solicitor general Tushar Mehta made this submission before a five-judge Constitution Bench comprising the Chief justice Dipak Misra and Justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Ms. Indu Malhotra hearing a batch of petitions on validity of IPC Section 377.
At the outset, the Chief Justice told the ASG “we intend to rule, subject to arguments, that two consenting adults even if engaged in “unnatural sex” will not be liable for prosecution for any offence.”
Replying to ASG’s submission on Centre’s stand, the CJI said, “So you are leaving it to our wisdom whether IPC Section 377 deals with crime and whether it should be treated as a crime or not we will deal with it.”
During the hearing on Tuesday, there was enough indication in favour of de-criminalising Section 377 of IPC and taking note of this the Centre decided not to spell out its stand one way or the other.
It may be noted that even during the hearing by a two judge Bench in February/March 2012, the then UPA government did not take any categorical stand and left it for the court to decide.