Justice Indu Malhotra on Thursday said that members of the Lesbian, Gay, Bisexual and Transgender community are forced to cave to family and societal pressures and marry people from the opposite sex. Malhotra is among the five judges on a Supreme Court bench that is hearing a batch of petitions demanding amendments to Section 377 of the Indian Penal Code, which criminalises homosexual acts.
“They [LGBT community] feel inhibited to go for medical aid due to prejudices involved against them,” she said. She added that “homosexuality is not an aberration, but a variation”. “It is not human beings alone who indulge in homosexual acts, many animals also show homosexual behaviour,” she said.
Appearing for a petitioner group, Voices Against 377, lawyer Shyam Divan referred to the Supreme Court’s judgements on the right to privacy and in the Hadiya case, and said the Section 377 had “a chilling effect on freedom of expression under Article 19 of the Constitution”.
Senior lawyer Krishnan Venugopal said Section 377 is used to harass the LGBT community. “It has a chilling effect on freedom of expression,” he argued. “It offers a legal basis to suppress alternate sexuality.”
Justice DY Chandrachud mentioned the Mental Healthcare Act, which he said expressly prohibits discrimination on the ground of sexual orientation. “So the Parliament itself now recognises them [homosexuals],” Chandrachud said.
Additional Solicitor General Tushar Mehta, on behalf of the central government, urged the court to stick to the constitutionality of the government. On Wednesday, Mehta said the Union of India does not contest an individual’s right to choose a partner. The Centre in its affidavit had said it left the decision to decriminalise consensual gay sex “to the wisdom of the court”.
A lawyer arguing in favour of Section 377 claimed the popular opinion was against homosexuality, according to LiveLaw. In response, Chief Justice Dipak Misra said, “We don’t go by majoritarian morality.” He added: “Constitutional questions cannot be decided by referendum.”
Advocate Manoj George, who is appearing for a religious organisation, told the court that Centre has taken a U-turn in the matter. He claimed that the Centre did not support a private bill to scrap the section but is taking a different stand in court. This, CJI Misra said, is irrelevant.
Mehta clarified that the Centre has not taken any u-turn and reiterated that it leaves it to the court.
Further arguments in the matter will continue on Tuesday.
The six petitions and interventions before the Supreme Court – filed by non-governmental organisation Naz Foundation, parents of queer people and Voices Against 377, a collective of human rights groups – urge the court to reconsider its own judgement from 2013, when it set aside a 2009 order by the Delhi High Court decriminalising homosexual activity. The top court placed the onus on Parliament, saying only the legislature can change laws. The United Kingdom, on whose Constitution many of India’s laws are based, abolished the law against same-sex relationships in 1967.
In August, the Supreme Court ruled that the right to privacy is a fundamental right, that it is intrinsic to life and liberty. Sexual orientation, the court said in its judgement, is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”.