The Supreme Court on Thursday said that same-sex relationship was a “variation” rather than an “aberration” and that it would follow constitutional morality instead of majoritarian to decide the validity of the penal provision criminalising it.
The Centre, for its part, urged the court not to expand the scope of the matter beyond the “consensual acts of adults in private”, a day after leaving the issue of determining the validity of Section 377 of IPC to the wisdom of judges.
A two-judge bench of the apex court had in 2013 overturned a Delhi High Court order decriminalising same-sex relations between consenting adults, but left it to Parliament to amend the law, if required.
The top court, however, said that if the Centre and state did not amend the 1860 law, it did not mean that some individuals cannot challenge it on the ground of violating their fundamental right under Article 14, 15, 19 and 21 of the Constitution.
Resuming its hearing on a plea challenging the constitutional validity of Section 377, a five-judge bench presided over by Chief Justice Dipak Misra said that once the criminality of consensual gay sex goes away, related issues like social stigma and discrimination against the LGBTQ community will also go.
“Over the years, we have created deep-rooted discrimination against people of same sex involved in a consensual relationship and this has impacted their mental health also,” the bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.
The Union government, represented by Additional Solicitor General Tushar Mehta, contended that the apex court should confine itself to the criminality of homosexuality in private and must not declare it as a matter of religious belief as contended by some of the petitioners.
Among gods
The law officer referred to a portion of a book that purportedly talked about queer relationships among gods. Senior advocate Ashok Desari, representing some of the petitioners, had relied upon the book to contend sexual diversities in mythology. He also said that same-sex love was unselfish.
Senior advocate Krishnan Venugopal maintained that Section 377 of the IPC impinged upon the right to free speech and expression and the right to conscience. “I am entitled to express my belief openly,” he said. The freedom of assembly and association was affected by the penal provision, that enjoined the maximum punishment of life imprisonment.
Senior advocate C U Singh submitted that affirmative action was required in view of the historical disadvantage and discrimination faced by the LGBTQ community.
Some interventors, however, contended that the government has taken a U-turn from its previous stand by not opposing the writ petitioners. “We also need to be heard in the eco-system created after the right to privacy judgement, as we have a voice of dissent,” a counsel representing Christian groups said.