July 11, 2018: A Constitution bench of the Supreme Court said on Tuesday that it will only decide on the validity of Section 377 of the Indian Penal Code, which criminalises same-sex acts, even as confusion prevailed over the government’s stance on the issue.
The five-judge bench led by Chief Justice of India Dipak Misra, hearing a batch of petitions challenging the British-era provision, said it will not decide on questions such as inheritance and the civil rights of people in same-sex relationships.
“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,” Misra said.
Government officials from the law and home ministries declined to comment on the matter while members of the ruling Bharatiya Janata Party (BJP) remained tight-lipped about whether the Centre will back the provision that is used against members of India’s Lesbian, Gay, Bisexual and Transgender (LGBT) community.
Late in the evening, attorney general KK Venugopal told news agency ANI that he had been told the government had a “different stand”. “I had appeared for the curative. I’m told the government’s stand is different therefore I’m not appearing in that case at all. I can’t appear because the government of India has a different stand.” However, he later said that he did not have clarity on what the government’s stand was.
The section was first challenged by activists before the Delhi high court, which read down the provision in 2009. During the high court proceedings, the Union home and health ministry had taken different positions, the former arguing for retention of the law, and the latter saying it should be read down.
When the judgment was challenged by religious organisations in the Supreme Court, the then United Progressive Alliance (UPA) government didn’t oppose the high court judgment, and even filed a review petition after the apex court reinstated Section 377.
