The Supreme Court of India on July 12, 2018 stated that the social stigma and discrimination attached to the LGBTQ community would go if the criminality of consensual gay sex is done away with.
The court stated this while maintaining that it would scrutinise the constitutional validity of section 377 of the IPC in detail.
A five-judge bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra is currently hearing petitions challenging the constitutional validity of the 158-year-old penal law.
The Hearing: Key highlights
• The SC bench rejected a proposal of the lawyers, seeking retention of section 377, that public opinion should be elicited on the matter, saying it did not want a referendum but would go by constitutional morality.
• “We decide questions of law on the basis of the Constitution, constitutional principles and its ethos, and not based on a referendum,” CJI Dipak Misra said, setting up the prospect of removing a provision in the law which punishes consensual sex among gay adults.
• It also objected to the submission of the lawyers that the Centre has made a U-turn on its stand and said that several verdicts including the one on right to privacy have come in the meanwhile and it would not be appropriate to call it a "U-turn".
• The bench said that it will try to see whether section 377 of the IPC can stand the test of fundamental rights enshrined under Articles 14 (right to equality), 19 (freedom of speech and association) and 21 (right to life and liberty) of the Constitution.
• The bench further questioned the lawyers, whether there was any law, rule, regulation, bye-law or guideline which barred or restrained homosexuals from availing any right that is available to others, to which they replied that “there are no such provisions”.
• The bench then said that the LGBTQ (lesbian, gay, bisexual, transgender and queer) community faced discrimination and social stigma because of the criminality attached to the consensual same-sex relationship.
• The bench stated that once the criminality under section 377 goes, then the stigma and discrimination will also go.
• The bench observed that over the years, an environment has been created in the Indian society that has led to deep-rooted discrimination against the LGBTQ community, which has also adversely impacted their mental health.
• Referring to the provision of the Mental Health Care Act, the bench said that it also recognises the fact that such persons cannot be discriminated against on the ground of sexual orientation.
The section refers to 'unnatural offences' and states “whoever voluntarily has carnal intercourse 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 observations were made on the third day of the crucial hearing to decide the constitutional validity of Section 377 of the IPC.
The observations came when senior advocate C U Singh, appearing for one of the intervenors said that mere striking down of section 377 will not serve the purpose as the LGBTQ community were being discriminated against on various counts.
Highlighting that even medical professionals do not maintain confidentiality, Justice Indu Malhotra stated that the LGBTQ community feels inhibited as they do not even get proper medical care because of the prejudice.
The hearing ended with no particular conclusion being drawn. It would now resume on July 17.
• The Centre on July 11, 2018 told the Supreme Court that it would leave it to the wisdom of its judges to decide on the constitutional validity of Section 377 on the issue of criminalising unnatural intercourse between two consenting adults.
• A five-judge constitution bench, headed by Chief Justice Dipak Misra, was told by Additional Solicitor General Tushar Mehta that the Centre has no objection with the court dealing with the validity of this penal provision.
• Taking note of the Centre's submission, the bench had said it would test the validity of the law in relation to the consensual sexual acts of two adults and if it decides to strike down the penal provision then it would remove ‘ancillary disqualification’ of LGBTQ community members, who can then join services, contest elections and form associations.
• Terming the law as a "terrible colonial legacy", one of the lawyers contested that it violated Articles 15 (discrimination on sex), 14 (equality), 19 (liberty) and 21 of the Constitution and has a "chilling effect" on the sexual minority.
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