Decriminalising gay sex will do away with social stigma against LGBTQ: Supreme Court

Updated on Jul 12, 2018 10:44 PM IST

The Supreme Court noted that the LGBTQ (lesbian, gay, bisexual, transgender and queer) community faced stigma because of the criminality attached to consensual same-sex relationship under Section 377 of the IPC.

LGBT activists protest against Supreme Court criminalising Section 377 at Jantar Mantar, in New Delhi, in December 2013.(Waseem Gashroo/HT File Photo)
LGBT activists protest against Supreme Court criminalising Section 377 at Jantar Mantar, in New Delhi, in December 2013.(Waseem Gashroo/HT File Photo)
New Delhi | By

The Supreme Court rejected on Thursday a demand to seek public opinion on Section 377 of the Indian Penal Code, a British-era law that criminalises same-sex acts, and said the court will go by constitutional morality, not majoritarian morality.

Hearing petitions seeking decriminalising Section 377, the Constitution bench of the top court said the provision had an adverse impact on the Lesbian Gay Bisexual and Transgender (LGBT) community that felt inhibited while seeking proper medical and healthcare facilities due to prejudices.

“We do not decide constitutional issues by conducting a referendum. We follow the concept of constitutional morality and not majoritarian morality,” the five-judge bench headed by CJI Dipak Misra told a lawyer favouring retention of Section 377 after he argued that the LGBT community constituted only 5-8% of the country’s population.

In 2013, when the Supreme Court revived Section 377, it had termed the LGBTQ community a “minuscule minority”.

The top court also made it clear that the petitions challenging Section 377 will be tested on judicial parameters, despite the Centre leaving it to the top court’s wisdom. The central government has asked the court to not widen the scope of petitions and include civil rights such as marriage and inheritance.

“On the mere concession of the Centre, we will not say that the section is ultra vires. We will have to analyse every aspect. We will do a detailed analysis of Section 377 and its constitutional validity,” said the bench, also comprising justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Reiterating that the court was not concerned with bestiality, incest or civil issues but only with the constitutional validity of the section vis-à-vis the LGBT community, the bench fixed a time limit for the opponents.

The CJI assigned 90 minutes to complete their arguments, making it clear the hearing would end on July 17.

Malhotra, the only woman judge on the bench, said LGBTQ members do not get “proper medical aid because of prejudices and inhibitions”. Additional solicitor general Tushar Mehta said a separate wing in the ministry of health dealt with the concerns of LGBTQs, who are encouraged to come forward with their problems, but many were unwilling to disclose their sexual orientation.

Homosexuality, Malhotra said, was a “variation” and “not only humans but many animals too indulge in same-sex relations”. “Prakruti and vikruti go together,” she added, a comment Mehta differed with. Later, in his brief submission, Mehta requested the court not to enter into matters of religious beliefs while deciding on the section.

The CJI asked senior advocate CU Singh whether there was any statute, rule or by-law that specifically targets LGBTQ persons, prompting Menaka Guruswamy, the lawyer for two petitioners, to say LGBTQ persons are not written into rules in the first place, and therefore there can be no rules against them.

Senior advocate Krishnan Venugopal raised the issue of threat and extortion which gay men face, especially through social media applications.


    Bhadra is a legal correspondent and reports Supreme Court proceedings, besides writing on legal issues. A law graduate, Bhadra has extensively covered trial of high-profile criminal cases. She has had a short stint as a crime reporter too.

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