At long last, the Central government has clarified its stance on Section 377 of the Indian Penal Code. On the second day of the hearing of the petitions challenging the provision, Additional Solicitor General Tushar Mehta revealed that the Centre will not contest the challenge to Section 377.

The affidavit submitted to the Supreme Court today states,

“…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 this Hon’ble Court…

…in the event this Hon’ble Court is pleased to declare Section 377 viz. “consensual acts of adults in private”, to be unconstitutional, no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into.”

However, the Centre revealed that should the Court delve into issues other than those specified above, it will file a detailed affidavit with respect to those issues.

“In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice.”

The hearings in the challenge to Section 377 of the Indian Penal Code continued today in the Supreme Court for the second successive day.

The matter is being heard by a Constitution Bench of Chief Justice of India Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Yesterday, Senior Advocates Mukul Rohatgi and Arvind Datar made their submissions for the petitioners. Counsel for the petitioners will continue with their submissions today. The Central government is represented by Additional Solicitor General Tushar Mehta.

Live updates follow:

Here is a brief summary of the arguments made yesterday:

Mukul Rohatgi

• Ramifications of this case is not just on sexuality, it will have impact on how society looks at these people, about perception, about livelihood and jobs for such people
• Suresh Kumar Koushal is wrong; I will take you through Naz Foundation judgment of Delhi High Court, NALSA judgment of SC and Privacy judgment of SC
• The issue of sexual orientation and gender are different; this case deals only with sexual orientation and has nothing to do with gender. We are saying that this is not a matter of choice but it is something innate and we are born with it
• Section 377 uses the word “order of nature”; What is this order? It is the Victorian morals of 1860s. As society changes, values change; what is moral 160 years ago might not be moral today
• Whether a pre-constitutional law not framed by our Parliament and which does not recognise the needs of our people ought to remain?
• The effect of S. 377 in our country is mostly on men though it appears sex-neutral
• Union of India did not file an appeal against the Delhi HC judgment
• Do not restrict it to S. 377, further directions are needed for protection of my life, property

Arvind Datar

• 1860 Code was simply imposed on India and it did not represent even the will of the British Parliament
• Is there any judgment of this court that pre-independence laws will not have benefit of presumption of Constitutionality?”, CJI Dipak Misra asks. “No no”, says Datar
• Chandrachud J. says Courts might not have same deference for pre-constitutional laws which they have for post-constitutional laws, due to absence of Parliamentary will
• The fact that Union of India did not choose to appeal against Delhi HC judgment is all the more reason for it to be struck down
• Section 377 criminalises a class of people; to say that it criminalises an act and not a class of people is not correct
• The object of penal code is to identify an offence and punish for the same so that it acts as a deterrant. But when it is a natural orientation, then how can it be an offence
• Regarding Article 21, Datar argues that Puttuswamy judgment says privacy encompasses decisional autonomy. It is a natural corollary that sexual orientation is also covered by that

View the updates on yesterday’s hearing here.

Read the Centre’s affidavit in the matter:

Read the written submissions by advocate Menaka Guruswamy

Read the written submissions by Senior Advocate Shyam Divan