New Delhi: Social stigma and discrimination attached to the LGBT community would go if criminality of consensual gay sex among two consenting adults is done away with, the Supreme Court said on Thursday even as it promised to scrutinise the legal validity of Section 377 of the IPC in all its aspects. The apex court also rejected a demand for a referendum over the constitutional validity of Section 377, saying “we do not decide constitutional issues by conducting a referendum”.
Thursday was the third day of hearing on a batch of petitions seeking the striking down of the 158-year-old colonial law on the ground of discrimination. Chief Justice Dipak Misra, who is heading the five-judge Consti-tution Bench, said, “The LGBT community feels the stigma because of the criminality attached to gay sex and, once it is removed, homosexuals can get together without any prohibition. The stigma is so because they are treated differently. Once decriminalisation is there they will feel empowered.”
He said even psychiatrists have established that a different orientation is not a mental illness. The bench further said, “We 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.”
Justice Chandrachud said: “Over the years, we have created an environment in the Indian society which has led to deep-rooted discrimination against people of same sex involved in a consensual relationship and this has impacted their mental health also.” “The Mental Healthcare Act, 2017, also recognises that sexual orientation should not be grounds for discrimination,” he added. Justice Malhotra said that due to their sexual orientation members of the LGBTQ, they are discriminated against even in availing healthcare.
Shyam Diwan, senior advocate began his argument stating that the time has come to declare “right to intimacy” as a part of “right to life” under Article 21 of the Constitution. Additional solicitor-general Tushar Mehta intervened and said reference to “prakriti” and “vikriti” in Hindu philosophical texts is related to philosophical and spiritual spheres and must not be dragged to link it to sexuality or homosexuality. The CJI said: “We are not concerned with bestiality, incest or related issues but only with the constitutional validity of Section 377 of IPC as far as it concerns sexual orientation of LGBTQ community members.”