Section 377 of the penal code, a relic from 1860s British legislation, bans gay acts as “carnal intercourse against the order of nature” and allows for jail terms of up to life.
The Supreme Court began hearing petitions against the ban on Tuesday, in the latest twist in a legal tussle between social and religious conservatives and more liberal Indians.
Setting out New Delhi’s position on Wednesday, senior government lawyer Tushar Mehta said Delhi would leave whether to decriminalise homosexuality “to the wisdom” of the court.
The court on its part also appeared to be in favour of overhauling the archaic law, according to the NDTV news network.
“We don’t want a situation where two homosexuals enjoying a walk on Marine Drive [a Mumbai boulevard] should be disturbed by the police and charged under Section 377,” said Justice J. Chandrachud, who is a part of the bench hearing the matter.
The Delhi High Court effectively decriminalised gay sex in 2009, but the Supreme Court reinstated legal sanctions four years later after a successful appeal by religious groups.
The Indian government has offered mixed messages on the issue in the past, with some ministers speaking out in favour of Section 377, only to be contradicted by others. Read more via AFP