New Delhi, July 11: The Centre on Wednesday left it to the Supreme Court to decide whether Section 377 of the Indian Penal Code which criminalises gay sex is constitutionally valid or not, the Centre said on Wednesday.

“We leave the validity of Section 377, so far as it relates to consensual acts between two adults, to the wisdom of the Hon’ble Court,” said Additional Solicitor General Tushar Mehta, who is arguing for the Centre.

The Home Ministry filed an affidavit explaining the government’s stand on the case. The Centre’s response came on Day 2 of the Supreme Court’s hearing on a bunch of petitions challenging the constitutional validity of Section 377 of the IPC.

The Centre said it will file a detailed affidavit if the court decides to examine any other issue than the constitutional validity of Section 377.

The bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said it has already made it clear yesterday that only the constitutional validity of Section 377 will be dealt with by it.

The law officer said that if the right to chose sexual partner is declared a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing to marriages.

“We are not considering all these issues. One cannot judge these issues in vacuum,” the bench said.

The change in the government’s stand – which earlier upheld the gay sex law – comes after the Supreme Court’s 2017 landmark verdict on the Right to Privacy. Declaring privacy as a fundamental right, the court had said the law can’t “trample or curtail” the constitutional right to life and liberty.

During the hearing, Justice Chandrachud said, “We don’t want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by the police and charged under Section 377”.

Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal inter course 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 apex court had yesterday commenced the crucial hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same gender.

During Tuesday’s hearing, the petitioners had argued that the criminalisation of gay sex was a product of Victorian-era morality and needed to be declared “unconstitutional”.

The apex court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgement that had held as unconstitutional section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence.