Once the criminality of consensual gay sex goes away, then related issues like social stigma and discrimination against the lesbian, gay, bisexual, transgender and queer community will also go, the Supreme Court said on Thursday.
Observing that an environment has been created in the Indian society over the years that has led to deep-rooted discrimination against the community, a five-judge constitution bench, hearing petitions seeking decriminalisation of 158-year-old colonial law under Section 377 of the Indian Penal Code, said discrimination against such people has also adversely impacted their mental health.
The bench, headed by Chief Justice Dipak Misra, asked lawyer Maneka Guruswamy, who was appearing for a petitioner, whether there was any law, rule, regulation, bye-law or guideline which barred or restrained homosexuals from availing any right which are available to others.
“There are no such provisions,” she said.
The bench then said the LGBTQ community faced the stigma because of the criminality attached 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, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, 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 of the Indian Penal Code.
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 intervenors, said mere striking down of section 377 will not serve the purpose as the LGBTQ community are 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, adding 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 of the IPC which criminalises “consensual acts of adults in private”, urging that issues like gay marriages, adoption and ancillary civil rights of LGBTQ should not be dealt by it.
Taking note of the Centre’s submission that other issues like gay marriages, adoption and ancillary civil rights of LGBTQ community should not be dealt, the court said it was not considering all these issues.
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 which can join services, contest elections and form associations.
Lawyer Guruswamy had on Wednesday referred to reports of Indian and American psychiatric bodies and said homosexuality was a normal sexual orientation.
Terming the law as a “terrible colonial legacy”, she had said 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.