Homosexuality: Centre leaves it to Supreme Court's wisdom to decide on Section 377

NEW DELHI: The Centre on Wednesday left it to the wisdom of the Supreme Court to examine the constitutional validity of the penal provision which criminalises "consensual acts of adults in private", saying this was the only question under section 377 of the IPC which needed to be decided by the constitution bench.

In an affidavit, the Ministry of Home Affairs said if the apex court decided to examine any question other than the constitutional validity of Section 377, it would have far-reaching and wide ramifications under various other laws.

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.

"So far as the constitutional validity Section 377, to the extent it applies to 'consensual acts of adults in private', is concerned, the Union of India would leave the said question to the wisdom of this Court," the affidavit said.

"If this Court is pleased to decide to examine any other question other than the constitutional validity of Section 377 of the Indian Penal Code, or to construe any other right in favour of or in respect of LGBTQ, the Union of India would like to file its detailed affidavit in reply," it said.

It also said that consideration of any other issue "would have far-reaching and wide ramifications under various other laws and also will have consequences which are neither contemplated in the reference, nor required to be answered by this Bench."

Maintaining that most of the petitions relating to section 377 were filed this year, the ministry said if these were permitted to be raised beyond the scope of the reference, then a a detailed counter affidavit showing legitimate state interest on various other issues would be required.

"Such an exercise could obviously not be undertaken without wider consultations in the government," the affidavit said.

"Allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter affidavit to the Union of India, may not be in the interest of justice and would be violative of principles of natural justice," it added.