Centre passes the buck on Section 377 to SC, says its validity is up to the wisdom of court

NEW DELHI: The Central government on Wednesday said that it will leave it to the wisdom of the court to decide on the constitutional validity of Section 377 on the issue of criminalising unnatural intercourse between two consenting adults. "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," Additional Solicitor General Tushar Mehta, representing the Centre, said.

A five-judge constitution bench headed by Chief Justice Dipak Misra is hearing a batch of petitions seeking decriminalisation of consensual sex between two adults of the same gender. The Centre during the hearing said that it has no objection with the court dealing with the validity of this penal provision.

The bench, which also comprised Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, said that it will only be hearing on the constitutional validity of Section 377.

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 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 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.