Republic TV has accessed the affidavit of the government of India conveying its stand on homosexuality and decriminalising Section 377 of the Indian Penal Code, that is to be submitted to the Supreme Court as it continues its marathon Constitution bench hearing into whether or not gay sex should be decriminalised.
Here is the full affidavit, point 6 of which states:
"I state and submit that 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 the Honourable Court."
On Monday, the government had sought more time to file its response, but Chief Justice Dipak Misra refused to delay the matter by saying that it was long pending. "We will go ahead with the scheduled hearing. We will not adjourn it. You file whatever you want during the hearing", the bench had said.
During the hearing on Tuesday, as the constitution bench heard a batch of petitions against Section 377, the 2013 judgment of the Supreme Court that had criminalised it had been referred to as a "mess". On 8 January 2018, a three-judge Supreme Court bench decided to revisit the 2013 verdict of the Supreme Court which refused to strike down Section 377 thereby essentially allowing the state to interfere in matters of personal choice and sexual orientation. The 2013 verdict had set aside the Delhi High Court's 2009 order decriminalising Section 377.
The three-judge bench, while making its decision to refer the matter to a five-judge bench said, "Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench".
The constitutional bench will hear as many as six petitions and interventions which were filed by the NGO Naz Foundation, 'Voices Against 377' human rights activists and parents of queer children. The hearing in the case will see as many as 35 individuals petitioners before the court to demand that the colonial anti-LGBT law is struck down in India. Former Attorney-General Mukul Rohatgi is among the senior lawyers representing the petitioners, while ASG Tushar Mehta is representing the government.