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11 Jul 2018

Govt leaves it to Supreme Court to decide validity of Sec 377 (and not related issues)

TT, New Delhi, Jul. 11 (Agencies): The Union government on Wednesday left it to the Supreme Court to repeal or keep the Indian Penal Code’s Section 377, a controversial law that criminalises homosexual acts.

Government attorney Tushar Mehta said the court should rule on the issue of consensual sexual acts between two 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," PTI quoted Mehta as telling the five justices hearing the issue.

The Supreme Court is hearing petitions by activists challenging the law, Section 377 of the Indian Penal Code, that makes gay sex punishable by up to 10 years in prison.

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.

”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.

Activists had cheered in 2009 when the Delhi High Court declared the law unconstitutional. But the judgment was overturned in 2013 when the Supreme Court decided that repealing the law should be left to Parliament, not the judiciary.

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