NEW DELHI: Giving ample indications of how it intends to deal with the controversial section 377 of the Indian Penal Code, the Supreme Court on Thursday said the discrimination and social stigma faced by LGBTQ (lesbian, gay, bisexual, transgender and queer) community will go if the criminality attached to gay sex is done away with.
A five-judge Constitution bench headed by Chief Justice Dipak Misra observed, “An environment has been created in the Indian society over the years that has led to deep-rooted discrimination against the community involved in a consensual relationship and this has impacted their mental health also. Stigma is felt because of criminality attached with it.”
The court was hearing a clutch of petitions seeking decriminalisation of section 377.
Justice Indu Malhotra said, “Homosexuality is not an aberration, but a variation. It’s an issue of right to life, of an individual because this community feels inhibited. There’s fear they won’t be protected by hospital because they might not follow the confidentiality code.”
Section 377, senior advocate Shyam Divan said, “silences a core part of one’s identity. This makes them feel they are second-class citizens in their country.”
Citing the Mental Healthcare Act, Justice D Y Chandrachud said, it does not discriminate “over sexual orientation and this indicates Parliament has recognised it”.
The observations came when senior advocate C U Singh said mere striking down of section 377 would not serve the purpose as the LGBTQ community is being discriminated against on various counts.
The Centre, however, tried to cap the ambit of the ruling, saying the court should not enter into matters of religious beliefs while deciding on section 377.
Additional Solicitor General Tushar Mehta said the court should confine its discussion to the constitutionality and legality of it alone.
Suresh Kumar Koushal, the petitioner whose appeal had led to re-criminalisation of section 377, argued against striking down or diluting the penal provision.
Manoj George, a lawyer appearing for two Christian associations, also resisted striking down section 377, and alleged that the Central government had taken a U-turn.
Constitution morality, not morality of the majority
The SC rejected a demand for a referendum over section 377, saying it would not go by majority opinion but by constitutional morality. “We do not decide constitutional issues by conducting a referendum. We follow the concept of constitutional morality and not majority morality. We don’t go by majority morality but by constitutional morality,” the bench said