Removing ‘criminal’ tag of Sec 377 should make life easier for LGBTQ members, Supreme Court says

The social stigma and discrimination against lesbians and gays should go away once consensual gay sex is no longer labelled as criminal, the Supreme Court said on Thursday. 

  • Published 12.07.18
The Supreme Court. Picture by Prem Singh

New Delhi, Jul. 12 (PTI): The social stigma and discrimination against lesbians and gays should go away once consensual gay sex is no longer labelled as criminal, the Supreme Court said on Thursday. 

A Constitution Bench hearing petitions against gay sex as laid down in Section 377 of the Indian Penal Code observed that an environment has been created in Indian society that has led to deep-rooted discrimination against the LGBTQ or lesbian, gay, bisexual, transgender and queer community.

The bench of Chief Justice Dipak Misra, and justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra asked lawyer Maneka Guruswamy, who was appearing for a petitioner, whether there was any law, rule, regulation, bye-law or guideline that barred or restrained homosexuals from availing themselves of any right available to others.

”There are no such provisions,” she said.

The bench then said the LGBTQ community faced a stigma because of the ‘criminality’ given to consensual same-sex relationship.

”Once the criminality (under section 377) goes, then everything will go (all the bars, social stigma and others),” the bench 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 bench said, on the third day of crucial hearing to decide the constitutional validity of Section 377.

Section 377 refers to 'unnatural offences' and says 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.

Referring to the provision of the Mental Health Care Act, the bench said: “it also recognises the fact that such persons cannot be discriminated against on the ground of sexual orientation”.

The observations came when senior advocate C.U. Singh, appearing for one of the interveners, said mere striking down of section 377 will not serve the purpose as the LGBTQ community is being discriminated against on various counts.

”This community feels inhibited as they do not get even proper medical care because of the prejudice,” Justice Malhotra said, noting even medical professionals do not maintain confidentiality.

On Wednesday, the government had left it to the apex court to test the constitutional validity of section 377, urging it not to deal with issues such as gay marriages, adoption and ancillary civil rights of the LGBTQ community.

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 join services, contest elections and form associations.

Lawyer Guruswamy had on Wednesday cited reports of Indian and American psychiatric bodies to say that homosexuality was a normal sexual orientation.

Terming the law as a “terrible colonial legacy”, she had said it violated articles of the Constition relating to discrimination, equality, liberty and life and has a “chilling effect” on the sexual minority.