THE CENTRE HAS put the onus on Supreme Court to decide on the constitutionality of Section 377 of the Indian Penal Code that criminalises homosexuality in the country.
CJI-led five-judge Constitution bench is currently considering whether to strike down or read down provisions of Section 377 that penalise 'unnatural' sexual intercourse (including gay sex) between consenting adults.
"We leave the validity of Section 377, so far as it relates to consensual acts between two adults, to the wisdom of the Supreme Court, the Centre said today.
At the same time, the Centre urged the Supreme Court not to deal with issues such as gay marriages and property and inheritance rights as these are matters that can have many repercussions.
The Centre made these comments in an affidavit filed by Additional Solicitor General Tushar Mehta.
The SC, on its part, gave a strong indication it plans to go ahead and scrap the Section that criminalises homosexuality.
Under Section 377 of the Indian Penal Code, sex "against the order of nature" draws a jail term and a fine. Activists say the police uses the law to harass members of the LGBT community.
Once it decriminalises Section 377, "discrimination faced by the LGBT community in employment and in choice of vocation will vanish," said the apex court. Further, "his will help awakening in the society and help LGBT (lesbian, gay, bisexual, and transgender) community will be able to live life to the fullest," it added.
The Centre also told the Supreme Court that while it would leave the issue of decriminalising homosexuality to the court, there should be safeguards against bestiality and harassment of children. ASG Mehta told the court that "perversions" such as incest and bestiality should not be allowed.
To this, Justice Chandrachud, who is on the five-judge Constitution bench hearing the matter, retorted that the Supreme Court is not considering kinks in sexual behaviour. "We want that two gay men holding hands and walking down Marine Drive are not arrested," Justice Chandrachud said.
The Centre submitted its affidavit, stating its stand on the issue, on the second day of the hearing in the case. A clutch of petitions have called for scrapping of the law criminalizing gay sex, others asked the court for a relook into its 2013 judgment.
Yesterday, the bench said it would only examine the "correctness" of its verdict of 2013, which cancelled a Delhi High Court judgment that declared criminalizing gay sex between consenting adults was "unconstitutional".
Under Section 377 of the Indian Penal Code, sex "against the order of nature" draws a jail term and a fine. While prosecutions under it has been rare, activists say the police use the law to harass members of the LGBT community. A series of challenges to the law has followed a tortuous route.
A Delhi High Court order decriminalizing gay sex was overturned by the Supreme Court in 2013. Five years later, in January this year, the top court decided to take a fresh look into the issue after a bunch of petitions calling for it piled up.
Last year's landmark judgment on Right To Privacy brought hope for the LGBT community. The court said the rights of lesbian, gay, bisexual and transgender population are "real rights founded on sound constitutional doctrine".
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