Attorney General Refuses to Argue in Section 377 Case, Hints Govt Doesn't Support Decriminalisation

New Delhi: Attorney General KK Venugopal on Tuesday said he would not appear for the central government in the high-profile challenge to constitutional validity of section 377 of the IPC as he had earlier argued in a curative petition against the Supreme Court’s previous verdict upholding its legality.

“I had appeared for the curative (petition). I'm told government's stand is different. Therefore, I'm not appearing in that case at all. I can't appear because government of India has a different stand," he told reporters.

With his statement, the Attorney General has spilled the beans on the Narendra Modi government’s stand on decriminalizing consensual sex between two adults of the same gender.

The curative petition was filed against the earlier SC verdict, which had overturned the Delhi High Court’s landmark decision in Naz foundation case scrapping Section 377.

On the first day of hearing in the case on Tuesday, the Centre’s stand had remained ambiguous. Additional Solicitor Tushar Mehta, appearing for the Centre, stated in Supreme Court that the government's stand on Section 377 was yet to come.


File photo of Attorney General KK Venugopal.

Senior advocate and former AG Mukul Rohatgi, appearing for the petitioners in the case, also stressed that the BJP-led central government never challenged the verdict of the Delhi High Court. This meant that, in principle, they accepted reading down of the impugned section.

Now with AG Venugopal stating that the Centre has a different opinion than his own, it is all but clear that the Centre has decided to support the criminalization of same sex relations. The Centre had on 9 July also sought to defer the hearing in SC since it wanted time to file its response to the batch of appeals, but its plea was rejected.

On Tuesday, a five-judge constitution bench headed by CJI Dipak Misra started revisiting its own 2012 verdict that criminalised homosexuality.

Entire LGBTQ community is now hopeful that this "archaic" and “colonial” legal provision will be done away with. The Delhi HC had ruled that Section 377 which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, was unconstitutional.

The first statement from the BJP on section 377 was made by Rajnath Singh in 2013, who stated that the party did not support decriminalization of Section 377. Singh's comment was soon followed by one from Arun Jaitley, who felt that it was time to "reconsider court's conservative view on homosexuality."

He also stated that it was time to repeal Section 377 but then the statement was later retracted.

AG Venugopal is not the first to not defend section 377. Two former AGs - Mukul Rohatgi and Goolam Vahanvati - had earlier refused as well. In 2012, Vahanvati had famously said his “conscience would not permit him to do so”. He then independently assisted the court as an amicus.

Now, in the court, Rohatgi is arguing for scrapping section 377 as it societal morality should not supersede constitutional morality. The hearing in the case would continue on Wednesday.