NEW DELHI: The Centre on Wednesday put the onus of deciding the fate of
Section 377 on the
Supreme Court (SC). And the
SC, on its part, gave a strong indication it plans to go ahead and scrap the Section that criminalises
homosexuality.
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, "this 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
Earlier Wednesday, in the affidavit the Centre submitted to the SC, it spoke of the "wisdom of the court" in deciding on Section 377.
"Let court decide, leave decision to wisdom of court," said the Centre in the affidavit it submitted to the SC via additional solicitor general Tushar Mehta, who's appearing for the Centre.
The Chief Justice of India (CJI)-led five-judge bench then said it intends to rule - subject to arguments - that two consenting adults even if engaged in 'unnatural sex' will not be liable for prosecution for any offence. What's more, after decriminalisation of Section 377, the LGBT community members can freely also contest elections without inhibitions, said the SC.
However, the Centre on Tuesday made clear that the court should decide only whether Section 377 of the Indian Penal Code (IPC) needed to be decriminalised and no other issue.
"The SC should not rule on any other issue as it could have far reaching consequences for future," said Mehta.
Anyway, the SC on Tuesday made it evident it was disinclined to examine wider issues relating to gay rights when, appearing for petitioners led by dancer Navtej Singh Johar, former attorney general Mukul Rohatgi, advocates Arvind Datar and Saurabh Kirpal, who argued for not only decriminalisation of Section 377 but also a clear enunciation on the right to choose same-sex partners. They said this was part of the fundamental right to privacy and choice, both intrinsic to right to life.
During the hearing on Tuesday, before a bench of CJI Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, clear signals emerged in favour of decriminalising Section 377, which the Delhi high court had in 2009 ruled in favour of, only to be reversed by a two-judge SC bench in 2013 in the Suresh Kumar Koushal vs Naz Foundation case.
In May, the apex court decided to hear the plea filed by Indian Institute of Technology's LGBT alumni association seeking scrapping of Section 377 of the IPC. Earlier, on April 27, Ashok Rao Kavi of Humsafar Trust and Arif Jaffar also filed petitions against Section 377.
These two pleas came just six days after hotelier Keshav Suri, filed a plea in this regard in the top court. In response to Suri's plea, the apex court on April 23 sought the Centre's reply on the plea seeking scrapping of Section 377.
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