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Centre leaves decision on Section 377 to ‘wisdom’ of Supreme Court

The government stated that it will file a detailed affidavit in case the court decides to examine any other question than the constitutional validity of Section 377, “or to construe any other right in favour of or in respect of LGBTQ”.

New Delhi: The Central government on Wednesday said that it’s the authority of Supreme Court to decide whether the law that criminalises consensual gay sex is constitutionally valid

A three-page affidavit filed by the Home Ministry read, “ So far as the constitutional validity [of] 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 the Hon’ble Bench.”

The government stated that it will file a detailed affidavit in case the court decides to examine any other question than the constitutional validity of Section 377, “or to construe any other right in favour of or in respect of LGBTQ”.

The five-judge bench led by Chief Justice Dipak Misra said on Tuesday that the matters of inheritance and the civil rights of people in same-sex relationships won’t be taken into consideration when it began hearing a batch of petitions challenging Section 377.

“The question here is whether section 377 is ultra vires or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to (same-sex) live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge now,” CJI Misra was quoted as saying by HT.

In 2009 the Delhi High Court effectively decriminalised gay sex, saying a ban violated fundamental rights, but the Supreme Court reinstated it in 2013 after religious groups successfully appealed.

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