Indian government ‘will let Supreme Court decide’ future of law banning gay sex

The Indian government says it will leave it up to the courts to decide whether gay sex should remain criminalised.

Colonial-era penal code Section 377, which criminalises sex “against the order of nature,” has been widely used to clamp down on the LGBT community in India, which is home to 1.3 billion people.

LGBT campaigners have been calling for the repeal of the law since it was brought back into effect by a court ruling in 2013.

A protest against Section 377 of Indian Penal Code (ARUN SANKAR/AFP/Getty)

The country’s Supreme Court has this week begun hearing a case relating to the law, after a number of positive signs indicating that justices could strike down the anti-gay law.

The court last year appeared to affirm that LGBT people deserve a basic right to a private life in a separate, limited ruling –  raising campaigners’ hopes.

Appearing in court this week, the Indian government said the issue would be left up to the courts.

Additional Solicitor General of India Tushar Mehta said: “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 this Court.”

However, he pressed the court to stay confined to the issue and not rule on further rights, such as recognition for same-sex relationships.

Mehta 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 as consideration of other issues would have far reaching and wide ramifications.”

The decision to sit out the battle suggests the government will not resist if the court strikes down the law.

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