Removal of section 377 enough to end discrimination

Remigio Civitarese
Luglio 15, 2018

"We do not want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by the police and charged under section 377", Justice Chandrachud said, adding that the court has to deal with a particular kind of relationship between adults and the question whether it can be brought under the ambit of Article 21 (Right to life and liberty) of the Constitution.

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

The Supreme Court today said the social stigma and discrimination attached to the LGBTQ community would go if criminality of consensual gay sex is done away with, even as it maintained that it would scrutinise the legal validity of section 377 of the IPC in all its aspects.

The bench asked lawyer Maneka Guruswamy, appearing for one of the petitioners in the case, whether there was any law, rule, regulation, bye-law or guideline that barred or restrained homosexuals from availing any right available to others. In this seminal judgment, the court ruled that discrimination against an individual on the basis of sexual orientation was deeply offensive to the dignity and self-worth of an individual.

In 2016, the Supreme Court agreed to hear a petition challenging the 2013 verdict and the conversation on legalizing gay sex began once again. After the decriminalisation of Section 377, the LGBT community members can freely contest elections without inhibitions.

The illegality attributed to homosexuality because of Section 377 has serious ramifications, the court said.

Justice Chandrachud had noted on the first day of the hearing that, "Section 377 criminalises a class of people; to say that it criminalises an act and not a class of people is not correct".

Justice Khanwilkar denied that the government had made any U-turn.

Advising against accepting the argument of "natural orientation" advanced by petitioners on a previous hearing to decriminalise homosexuality, additional solicitor general of India, Tushar Mehta, cautioned the court saying that it may lead to a possible challenge to prohibition against incestuous and marriages with cousins under personal laws.

Chief Justice Misra said: "We will decide whether consensual sex between two consenting adults is a crime or not".

Placing the ball in the Parliament's court, the Supreme Court then said that it is for the lawmakers to consider "the desirability and propriety of deleting Section 377 from the statute book or amend it".

Section 377, as the law has come to be known, criminalizes, "whoever voluntarily has carnal inter¬course against the order of nature with any man, woman or animal".

The court has, however, drawn a line at debating the broader civil rights of the community such as marriage, adoption, maintenance etc.

In August previous year, the Supreme Court in its right to privacy judgment said that sexual orientation was an essential attribute of privacy.

During the hearing on Tuesday, there was enough indication in favour of de-criminalising Section 377 of IPC and taking note of this the Centre decided not to spell out its stand one way or the other.

Section 377 defies the Right To Privacy which gives people the right to choose their own partner.

The CJI said, "We don't go by majoritarian morality but by constitutional morality".

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