Govt saw 'writing on the wall', left gay sex issue to court's wisdom: SC

The Supreme Court on Thursday said it would have "appreciated" a categorical statement from the Centre on the validity of Section 377 of the IPC but the government saw the "writing on the wall" and left the matter to the "wisdom of the court".

The observation was made by a five-judge constitution bench headed by Chief Justice Dipak Misra, which unanimously ruled that gay sex among consenting adults is not a criminal offence holding that part of a 158-year-old colonial law that criminalised it, violated the constitutional right to equality and dignity.

"The Union of India, seeing the writing on the wall, has filed an affidavit in which it has not opposed the petitioners but left the matter to be considered by the wisdom of this court," Justice R F Nariman, who wrote a separate concurring verdict, noted in his judgement.

Justice D Y Chandrachud, who also penned a separate concurring verdict, said that the government had left it to the wisdom of the court to decide on the validity of section 377 of the IPC.

Section 377 of IPC refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

"The Union government states that it leaves a decision on the validity of section 377 'to the wisdom of this court'. Implicit in this is that the government has no view of its own on the subject and rests content to abide by the decision of this court," Justice Chandrachud said.

He said that constitutional issues were not decided on "concession" and the Centre's statement does not concede to contention of petitioners, who have challenged the validity of the provision, that the statutory provision was invalid.

"We would have appreciated a categorical statement of position by the government, setting out its views on the validity of section 377 and on the correctness of Koushal (the apex court judgement overturning the Delhi High Court's verdict decriminalising gay sex between consenting adult)," Justice Chandrachud said.

"The ambivalence of the government does not obviate the necessity for a judgment on the issues raised," he said, adding "In reflecting upon this appeal to our wisdom, it is just as well that we as judges remind ourselves of a truth which can unwittingly be forgotten: flattery is a graveyard for the gullible".

Justice Chandrachud said that bereft of a submission on behalf of the Centre on a matter of constitutional principle, these proceedings must be dealt with in the only manner known to the constitutional court "through an adjudication which fulfills constitutional values and principles".