The Supreme Court on Thursday 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.
A five-judge bench headed by Chief Justice Dipak Misra, hearing a clutch of petitions challenging the constitutional validity of the 158-year-old penal law, also rejected a proposal of lawyers, seeking retention of Section 377, that public opinion should be elicited on the matter, saying it did not want a referendum but would go by constitutional morality.
The bench took note of the vehement opposition of these lawyers and their allegation that the Centre had taken a "U-turn" in the case.
It then asked lawyer Maneka Guruswamy, 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.
She said though there was no such law, but there was discrimination. She also referred to the Domestic Violence Act which protects married women only.
The court 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 (social stigma, discrimination etc)," it said.
The bench, which also comprised Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, said "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."
"We will try to see whether Section 377 of the IPC can stand the test of fundamental rights enshrined under Articles 14 (right to equality), 19 (freedom of speech and association) and 21 (right to life and liberty) of the Constitution," the bench said.
When the issue of discrimination against LGBTQ (lesbian, gay, bisexual, transgender and queer) community came up, Justice Malhotra said that due to their sexual orientation, they were discriminated against even in availing healthcare.
She also said that "family pressure" forced such persons to get into heterosexual married relationships, which could be one of the reasons for becoming bi-sexuals.
"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 with regard to their LGBTQ patients.
The bench also objected to the submission of lawyer Manoj George that the Centre has made a U-turn in the matter and said several verdicts, including the one on right to privacy, have come in the meantime and it would be inappropriate to call it a "U-turn".
"Why do you say it is a U-turn? It is not a case of U-turn. Judgements like Puttuswamy (declaring privacy a fundamental right) was a subsequent development," the bench said, adding "significantly, the government did not file an appeal against the Delhi High Court verdict (decriminalising consensual gay sex)".
Additional Solicitor General Tushar Mehta, appearing for the Centre, also opposed the submission accusing the government of changing its stand and said it has left the issue to the wisdom of the court.
He again urged the court not to deal with other ancillary civil rights of the LGBTQ community, like marriages, inheritance and adoption.
The court observed that "over the years, we have created an environment in the 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 validity of Section 377 of the IPC.
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 Parliament has prohibited discrimination of anyone because of their sexual orientation.
"It (Act) also recognises the fact that such persons cannot be discriminated against on the ground of sexual orientation," the bench said.
The observations came when senior advocate C U Singh, appearing for one of the intervenors, said that unfortunately such non-discrimination on the ground of sexual orientation in the law has not been extended to all fields and hence, mere striking down of section 377 will not serve the purpose.
At the outset, senior advocate Shyam Divan, appearing for a group 'Voice against 377', said the court should declare the 'right to intimacy' as fundamental right saying the LGBTQ community faced "unjust and unequal treatment" due to the existence of the section 377.
Besides Divan, senior advocates Ashok Desai, C.U. Singh, Krishnan Venugopal and other lawyers argued against the penal provision. The advancing of arguments remained inconclusive and would resume on July 17.